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SCOTUS will review concessions of guilt by trial counsel

McCoy v. Louisiana, USSC No. 16-8255, cert granted 9/28/17

Question presented:

Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?

Decision below: State v. McCoy, 218 So.3d 535 (La. 2016)

USSC Docket

Scotusblog page (including links to cert petition and responses; briefs; and commentary)

You’d think the answer to this question would be obvious, but apparently it’s not, if the Supreme Court has to answer it. McCoy was on trial for three counts of first degree murder, a crime punishable by death. His retained lawyer concluded the best defense was to concede guilt on second degree murder based on diminished capacity (a defense not actually available under Louisiana law). McCoy furiously and vociferously objected to this defense, insisting instead he was not the killer and had an alibi. McCoy tried unsuccessfully to discharge his lawyer, and his lawyer proceeded with his strategy. Counsel explained:

I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted.

218 So.3d at 565. The Louisiana Supreme Court said this was a reasonable strategy in light of the overwhelming evidence, as McCoy’s crazy insistence on his alibi put trial counsel in a bind because it would require counsel to do the impossible or unethical. 218 So.3d at 564-72.

The Supreme Court has held that when trial counsel informs the defendant of that he believes a concession of guilt is a reasonable strategy and is in the defendant’s best interest “and the defendant is unresponsive,” trial counsel may reasonably proceed to concede guilt. Florida v. Nixon, 543 U.S. 175 (2004). The Louisiana court relied on Nixon as support for its conclusion, 218 So.3d at 571-72, but the difference between an “unresponsive” defendant and McCoy, who repeatedly made his objection known, is striking. And the state court’s conclusion that McCoy’s objections essentially don’t matter turns adversary counsel—duty-bound to present a defense at trial, no matter how weak and futile, once a defendant has decided to go to trial instead of plead guilty—into someone more akin to a guardian ad litem, responsible for looking out for the best interests of a person lacking competency to decide for himself or herself. Even under Nixon, then, it seems clear Louisiana has gone too far; but we shall soon find out.

Wisconsin has validated concessions of guilt by trial counsel, though it hasn’t gone as far as Louisiana. State v. Gordon, 2003 WI 69, ¶¶20-30, 262 Wis. 2d 380, 663 N.W.2d 765, held it was reasonable for trial counsel to concede guilt in closing (as opposed to opening) on the most minor charge in a multi-count trial to gain credibility in arguing for acquittal on the more serious charges, where the defendant didn’t object and, indeed, testified to facts that supported the concession. As the dissent in that case notes, however, those qualifications are all irrelevant to the basic issue: Has the defendant decided to plead guilty and knowingly and voluntarily waived the right to trial on the charge? If not, his or her lawyer has no business conceding guilt. Id., ¶¶49-69 (Abrahamson, C.J., dissenting). Stay tuned to see whether Gordon survives, or is limited by, the decision in this case.

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