McCoy v. Louisiana, USSC No. 16 – 8255, 2018 WL 218-617, 5/14/18, reversing and remanding State v. McCoy, 2018 So.3d 535 (La. 2016); SCOTUSblog page (includes links to briefs and commentary).
In a 6-3 opinion written by Justice Ginsburg, SCOTUS holds that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his lawyer refrain from admitting that he is guilty of a charged crime when he objects to that admission. It further holds that if a lawyer concedes guilt in this situation, Strickland and the harmless error rule do not apply. The defendant automatically gets a new trial.
McCoy was charged with murdering his estranged wife’s mother, stepfather and son and pleaded not guilty. He insisted that he was innocent and objected to any admission of guilt even though the evidence against him was overwhelming. His trial lawyer felt sure that the jury would convict him, and a death sentence would follow, so he admitted to the jury that McCoy committed all three murders. McCoy took the stand, testified that he did not kill his own family, and claimed that he had an alibi. In closing, the trial counsel again admitted that McCoy committed the murders but urged mercy in light of his serious mental and emotional issues. Guess what the jury did? It convicted McCoy of 3 counts of 1st degree homicide. He appealed.
The 6th Amendment grants to the accused the right to the assistance of counsel for his defense. Counsel may make certain kinds of decisions about the case, but others belong exclusively to the client.
Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008) (internal quotation marks and citations omitted). Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983). (Slip op. at 6). (Emphasis supplied).
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. (Slip op. at 6)(citations omitted).
The majority noted that even if conceding guilt is the best way to avoid the death penalty, the trial lawyer doesn’t get to choose that objective. The “client 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.” (Slip op. 7).
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”). (Slip op. 7-8).
The majority distinguished McCoy’s situation from Florida v. Nixon, 543 U.S. 175 (2004), where trial counsel discussed with his client a trial strategy that involved admitting guilt but the client was “generally unresponsive.” In Nixon, trial counsel did not negate his client’s autonomy by overriding his defense objective because the client never asserted an objective. (Slip op. 8-9).
There are several very important takeaways from this opinion. For starters, Strickland does not apply to this constitutional violation, so the defendant does not have to prove prejudice. The harmless error doctrine doesn’t apply either. When a lawyer admits his client’s guilt over his client’s express objection, the error is structural, and the client automatically gets a new trial. (Slip op. 12).
Second, the dissenting opinion by Alito (joined by Thomas and Gorsuch) insists that the majority’s holding applies to a narrow set of circumstances that rarely occur. (Dissent at 6-7). But that’s not what the majority said. The rule is: “Counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection.” (Slip op. 11).
Third, the majority’s rule injures, if not slays, SCOW’s decision in State v. Gordon, 2003 WI 69, ¶26, 262 Wis. 2d 380, 663 N.W. 2d 765, a multi-count case where trial counsel conceded that Gordon was guilty of a lesser count in order to gain credibility and win acquittal on other charges. Gordon asserted ineffective assistance of counsel, but SCOW found his trial counsel’s strategy was reasonable because the evidence of guilt on the lesser offense was overwhelming. The majority’s holding here suggests that counsel cannot concede guilt on any charge over his client’s objection. And it doesn’t matter if the evidence of guilt is overwhelming because neither Strickland nor the harmless error rule applies. Note that Abrahamson’s prescient dissent in Gordon (joined by A.W. Bradley) closely tracks the majority opinion in this case.
The majority opinion also casts doubt on State v. Nelson, 2014 WI 70, ¶47, 355 Wis. 2d 722, 849 N.W.2d 317, which held that a trial court’s erroneous denial of a defendant’s right to testify was harmless error. According to the majority, a violation of a defendant’s 6th Amendment autonomy rights is structural and thus not subject to a harmless error analysis. (Slip op. 11.) As noted above, the majority classifies the defendant’s right to testify as a protected autonomy right. If you are briefing structural error, read this opinion.