The Fascinating, And Lousy, Supreme Court Decision In McCoy v. Louisiana

Today the U.S. Supreme Court threw out a guilty verdict of Robert McCoy, a Louisiana triple murderer based on reasoning that, on the surface, appears obvious – but upon any serious review is very poor indeed.

The case is McCoy v. Louisiana, and here are the facts: On May 5, 2008, three people – Christine and Willie Young and Gregory Colston – were shot and killed in Bossier City. As the three all bore a familiar relation to a man named Robert McCoy – they were the mother, stepfather and son (by another father) of McCoy’s estranged wife Yolanda – McCoy was an immediate suspect in the shootings. And when several days later McCoy was picked up by police while hitchhiking in Idaho after much evidence had been gathered against him, he was charged in the triple murder.

When we say much evidence, we aren’t kidding. McCoy and his wife weren’t just estranged, he had abused her and threatened her life to such an extent that she was under police protection. And there is a recording of a 911 call made by Christine Young in which she is heard to say  “She ain’t here, Robert . . . I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t in there, Robert.” That came just before there were gunshots audible on the recording and the line then went dead.

There is more. When officers made it to the scene they found the victims dead or dying and a man fitting McCoy’s description fleeing the scene in his car. McCoy then abandoned the car amid a police chase, leaving behind some pretty damning evidence –  the cordless phone his
mother-in-law had used to call 911 and a receipt for the type of ammunition used to kill the victims. Then when he was arrested in Idaho, it turned out he had the gun used in the murders.  And for the piece de resistance, he’d borrowed the money to buy his ammunition from an acquaintance who testified to that effect, not to mention he was on the store surveillance cameras buying those bullets.

Plus he’d bragged to a couple of friends about having committed another murder before the three he was charged with.

So Robert McCoy was about as guilty as anybody could possibly be. And after he was arrested, he started doing to his own case something similar to what he did to the victims.

First, he insisted that he didn’t shoot anybody and that the whole thing was a frame-up by crooked cops after a drug deal went wrong and resulted in the victims’ deaths. He and his initial court-appointed lawyer, who had asked for a sanity commission in hopes of finding a defense for him (one was appointed and found him competent to stand trial) fell out fairly quickly after that, and McCoy fired the lawyer and sought leave to represent himself for a while. That’s when McCoy’s family hired Larry English to defend him.

English, faced with the ultimate dog-with-fleas of a case, recognized McCoy’s story about crooked cops and a frame-up was an express train to the electric chair, and set about trying to offer a different defense – namely, that his client was nuts and because he was insane he didn’t have the mens rea for first-degree murder. He was trying to save his obviously guilty client’s life.

So English told McCoy that was his plan a few months before the trial, and McCoy disagreed. You’d expect McCoy would have then fired English and tried to find a lawyer who would take on his cockamamie and patently untrue story, but he didn’t – instead, he waited until a pre-trial conference on July 26, 2011 to terminate English as his lawyer, which was two weeks after English told him he was going to stipulate to McCoy’s having killed the three victims. English said he was happy to depart the case if McCoy could find another lawyer, but the judge refused to separate the two.

And then in opening arguments before the jury English conceded that his client killed the victims, to which McCoy objected, out of the jury’s earshot, that English was selling him out. The judge cautioned him against any more outbursts, and then despite McCoy testifying on his own behalf with a weak alibi about being out of state when the murders were committed – which more than anything else is what convicted him at trial – English conceded McCoy killed the victims again in closing arguments while imploring the jury to consider that he was insane and have mercy on him in the sentencing phase.


Obviously, a mess of a defense all around. McCoy, who was convicted and sentenced to death for each of the three murders, then fired English and found a new lawyer who sought a new trial on the basis that English functionally deprived McCoy of his right to counsel by admitting the killings.

The issue, as the six-justice majority saw it, is whether English violated McCoy’s constitutional right to a defense by stipulating to those murders without entering a guilty plea his client would have had to agree to. This is obviously a dynamic which is only really going to come up in a death penalty case, because it’s the only type of case in which admitting to a crime carries an opportunity for a more lenient sentence – you’re more often going to get life, or maybe less, if you confess a murder than if you deny it and the jury finds you a murderer and a liar to boot.

The Louisiana Supreme Court’s answer was no, that English was put in an impossible position in which his best opportunity to save his client’s life was to stipulate to the killings, and therefore reversible error wasn’t committed at the trial when the lawyer did what he did. But McCoy appealed the case to the U.S. Supreme Court, and the majority agreed with him.

Justice Ruth Bader Ginsburg, writing for the majority:

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. See
Weaver v. Massachusetts, 582 U. S. ___, ___ (2017) (slip op., at 6) (2017) (self-representation will often increase the likelihood of an unfavorable outcome but “is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty”); Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U. S. 152, 165 (2000) (Scalia, J., concurring in judgment) (“Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State.”).

Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. See Tr. of Oral Arg. 21–22 (it is for the defendant to make the value judgment whether “to take a minuscule chance of not being convicted and spending a life in . . . prison”); Hashimoto, Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case, 90 B. U. L. Rev. 1147, 1178 (2010) (for some defendants, “the possibility of an acquittal, even if remote, may be more valuable than the difference between a life and a death sentence”); cf. Jae Lee v. United States, 582 U. S. ___, ___ (2017) (slip op., at 12) (recognizing that a defendant might reject a plea and prefer “taking a chance at trial” despite “[a]lmost certai[n]” conviction (emphasis deleted)). When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. U. S. Const., Amdt. 6 (emphasis added); see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”).

That’s a fair argument, but it’s shaky. Here was Samuel Alito’s dissent…

The Constitution gives us the authority to decide real cases and controversies; we do not have the right to simplify or otherwise change the facts of a case in order to make our work easier or to achieve a desired result. But that is exactly what the Court does in this case. The Court overturns petitioner’s convictions for three counts of first-degree murder by attributing to his trial attorney, Larry English, something that English never did. The Court holds that English violated petitioner’s constitutional rights by “admit[ting] h[is] client’s guilt of a charged crime over the client’s intransigent objection.” But English did not admit that petitioner was guilty of first-degree murder. Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner committed one element of that offense, i.e., that he killed the victims. But English strenuously argued that petitioner was not guilty of first-degree murder because he lacked the intent (the mens rea)
required for the offense. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case.

The Louisiana Supreme Court held that English could not have put on petitioner’s desired defense without violating state ethics rules, see 218 So. 3d, at 564–565, but this Court effectively overrules the state court on this issue of state law, ante, at 9–10. However, even if it is assumed that the Court is correct on this ethics issue, the result of mounting petitioner’s conspiracy defense almost certainly would have been disastrous. That approach stood no chance of winning an acquittal and would have severely damaged English’s credibility in the eyes of the jury, thus undermining his ability to argue effectively against the imposition of a death sentence at the penalty phase of the trial. As English observed, taking that path would have only “help[ed] the District Attorney send [petitioner] to the death chamber.” App. 396. (In Florida v. Nixon, 543 U. S. 175, 191–192 (2004), this Court made essentially the same point.) So, again, what was English supposed to do?

When pressed at oral argument before this Court, petitioner’s current counsel eventually provided an answer: English was not required to take any affirmative steps to support petitioner’s bizarre defense, but instead of conceding that petitioner shot the victims, English should have
ignored that element entirely. Tr. of Oral Arg. 21–23. So the fundamental right supposedly violated in this case comes down to the difference between the two statements set out below.

Constitutional: “First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I submit to you that my client did not have the intent required for conviction for that offense.”

Unconstitutional: “First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I admit that my client shot and killed the victims, but I submit to you that he did not have the intent required for conviction for that offense.”

The practical difference between these two statements is negligible. If English had conspicuously refrained from endorsing petitioner’s story and had based his defense solely on petitioner’s dubious mental condition, the jury would surely have gotten the message that English was essentially conceding that petitioner killed the victims.

But according to petitioner’s current attorney, the difference is fundamental. The first formulation, he admits, is perfectly fine. The latter, on the other hand, is a violation so egregious that the defendant’s conviction must be reversed even if there is no chance that the misstep caused any harm. It is no wonder that the Court declines to embrace this argument and instead turns to an issue that the case at hand does not actually present.

Between the two arguments, it’s Alito’s, with which Clarence Thomas and Neil Gorsuch concur, which is more persuasive. The Louisiana Supreme Court cites a provision in the state rules on professional conduct that  “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,” and found that for English to have put on a defense of innocence to the shootings would have been an ethical violation; the majority disregarded that and found it wanting on the basis that since McCoy denied the shootings English therefore didn’t know the “I didn’t do it” defense was a lie.

That’s awfully thin.

This is an unusually bad case, and it’s not surprising it makes for bad law. You had something of a perfect storm of bad elements combine to make a conundrum in the McCoy case, but what’s coming out of it is a means by which unscrupulous lawyers might well intentionally scupper their clients’ defenses in capitol murder cases so as to prolong the appeals process and put off an execution.

Because that’s the effect of this case. We’ll now have a new trial with the same impossible-to-contest facts, and the same guilty verdicts, and probably some new flimsy appeal. And untold amounts of money will be spent denying justice for the family of the victims.



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