The Louisiana Supreme Court has unan­i­mous­ly over­turned the con­vic­tion of death-row pris­on­er Brian Douglas Horn (pic­tured), after Horn’s lawyer con­ced­ed — over Horn’s explic­it objec­tion — that his client had killed and also may have molest­ed 12-year-old Justin Bloxom. The September 7, 2018 rul­ing is the lat­est fall­out in Louisiana from the U.S. Supreme Court’s deci­sion ear­li­er this year in McCoy v. Louisiana, which declared that such con­ces­sions vio­late a defendant’s Sixth Amendment right to coun­sel. Prior to and dur­ing tri­al, Horn told his lawyer and filed motions with the court say­ing that he did not want to con­cede guilt or admit he com­mit­ted the crime. Horn’s lawyer ignored his client’s objec­tions, telling the jury dur­ing clos­ing argu­ment, ​“We know that Brian Horn killed Justin Bloxom.… I’m not ask­ing you to let him walk the streets. I’m not ask­ing you to find him ​‘not guilty.’” Instead, coun­sel sug­gest­ed that Horn was guilty of either sec­ond-degree mur­der or manslaugh­ter, nei­ther of which car­ry the death penal­ty as a pos­si­ble pun­ish­ment. Louisiana Chief Justice Bernette Johnson wrote that this con­ces­sion denied Horn the assis­tance of coun­sel in his defense and was a ​“struc­tur­al error” that required over­turn­ing the con­vic­tion. ​“While con­ced­ing guilt in the hope of avoid­ing a death sen­tence may be a rea­son­able strate­gic deci­sion in some cas­es, the deci­sion to do so belongs to the defen­dant,” she said. The rul­ing echoed the lan­guage of Justice Ruth Bader Ginsburg’s 6 – 3 opin­ion for the Court in McCoy in which she stat­ed, ​“With indi­vid­ual lib­er­ty — and, in cap­i­tal cas­es, life — at stake, it is the defendant’s pre­rog­a­tive, not counsel’s, to decide on the objec­tive of his defense: to admit guilt in the hope of gain­ing mer­cy at the sen­tenc­ing stage, or to main­tain his inno­cence, leav­ing it to the State to prove his guilt beyond a rea­son­able doubt.” In dis­sent, Justice Samuel Alito likened the issue to ​“a rare plant that blooms every decade or so. Having made its first appear­ance today, the right is unlike­ly to fig­ure in anoth­er case for many years to come.” However, a friend-of-the-court brief filed by the Louisiana Association of Criminal Defense Lawyers in con­nec­tion with McCoy’s case described a pat­tern of Louisiana state court rul­ings that have per­mit­ted cap­i­tal defense coun­sel to con­cede guilt over their clients’ express objec­tion or required cap­i­tal defen­dants to rep­re­sent them­selves to avoid hav­ing their lawyer con­cede guilt. In a media state­ment at the time of the McCoy deci­sion, his lawyer, Richard Bourke, said, “[w]hile rare in the rest of the coun­try, … Mr. McCoy’s was one of ten death sen­tences imposed in Louisiana since 2000 that have been taint­ed with the same flaw.” On June 25, in anoth­er of those cas­es, the U.S. Supreme Court vacat­ed the Louisiana Supreme Court’s deci­sion uphold­ing the con­vic­tion of death-row pris­on­er Jeffrey Clark and returned the case to the state court for recon­sid­er­a­tion in light of McCoy. Prosecutors in Horn’s case must now decide whether to appeal the deci­sion and whether to again seek the death penal­ty if they retry the case.

(Stacy Cameron, Man con­vict­ed of kid­nap­ping, killing 12-year-old boy gets new tri­al, KSLA 12 News, September 7, 2018; Kevin McGill, Conviction, death sen­tence over­turned in mur­der of boy, 12, Associated Press, September 7, 2018.) Read the Louisiana Supreme Court’s deci­sion here. See Representation.

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