The jus­tices of the U.S. Supreme Court appeared to be favor­ing argu­ments pre­sent­ed by Louisiana death-row pris­on­er Robert McCoy (pic­tured), who was con­vict­ed and sen­tenced to death after his lawyer, in the face of repeat­ed instruc­tions from his client to argue his inno­cence, instead told the jury that McCoy had killed three fam­i­ly mem­bers. McCoy’s tri­al lawyer, Larry English, said he ignored his clien­t’s instruc­tions and con­ced­ed guilt hop­ing jurors would then vote against the death penal­ty because McCoy had ​“seri­ous emo­tion­al issues” that pre­vent­ed him from ​“function[ing] in soci­ety” or ​“mak[ing] ratio­nal deci­sions.” News cov­er­age of the January 17 oral argu­ment in McCoy v. Louisiana reports that the jus­tices were in ​“broad agree­ment” with McCoy’s posi­tion and ​“seemed sym­pa­thet­ic to his plight.” The ques­tion debat­ed dur­ing the hour-long Supreme Court argu­ment was ​“whether the right to a lawyer that’s guar­an­teed by the Constitution is mean­ing­ful if, even with the best inten­tions, he can ignore his client’s wish­es.” Seth Waxman, for­mer U.S. Solicitor General under the Clinton Administration, argued on behalf of McCoy, say­ing that ​“when a defen­dant main­tains his inno­cence and insists on test­ing the pros­e­cu­tion on its bur­den of proof” then the Sixth Amendment right to coun­sel ​“pro­hibits a tri­al court from per­mit­ting the defen­dan­t’s own lawyer, over the defen­dan­t’s objec­tion, to tell the jury that he is guilty.” The state’s attor­ney, Louisiana Solicitor General Elizabeth Murrill, argued for what the state charc­ter­ized as a ​“nar­row excep­tion” that would allow a defense lawyer in a cap­i­tal case to over­ride the clien­t’s wish­es and admit the clien­t’s guilt if the lawyer believed that was nec­es­sary to save the clien­t’s life. But even Justices Gorsuch and Alito — two of the Court’s most con­ser­v­a­tive jus­tices — seemed to agree in some respects with McCoy’s posi­tion. Justice Gorsuch asked Murrill why the error at tri­al was not ​“a total denial of the assis­tance of coun­sel” and said that the right to coun­sel includ­ed ​“not to have an agent of the state assist the state in pros­e­cut­ing you.” Justice Alito expressed exas­per­a­tion that the case had even reached this point, ques­tion­ing the tri­al court deci­sions find­ing McCoy com­pe­tent to stand tri­al and refus­ing to allow English to with­draw from the case. “[I]f some­body like McCoy real­ly sin­cere­ly believes that he did not com­mit these phys­i­cal acts, but it was all done by — as part of an elab­o­rate con­spir­a­cy, is he — is he capa­ble of assist­ing in his own defense?,” Alito asked. Justices Breyer and Kagan voiced sym­pa­thy for English, who they believed was try­ing to save McCoy’s life. Justice Kennedy, often the swing vote in death-penal­ty cas­es, asked the Louisiana Solicitor General a sin­gle line of ques­tions: was it Louisiana’s posi­tion that, if ​“a defen­dant [in a cap­i­tal case] wants to plead not guilty, the defense attor­ney can plead guilty if the defense attor­ney thinks that’s the best way to avoid the death penal­ty?” When the solic­i­tor gen­er­al said that a lawyer could not do that, Kennedy fol­lowed up, ask­ing ​“How is that propo­si­tion any dif­fer­ent from what real­ly hap­pened in this case?” A deci­sion is expect­ed by the end of June 2018.

(Amy Howe, Concern for death-row inmate’s rights like­ly to trump line-draw­ing wor­ries, SCOTUSblog, January 17, 2018; Mark Sherman, Justices lean toward death row inmate in dis­pute with lawyer, Associated Press, January 17, 2018; Adam Liptak, Supreme Court Skeptical of Lawyer’s Conduct in Death Penalty Case, New York Times, January 17, 2018; Lea Skene, Louisiana lawyer who felt ​‘eth­i­cal duty’ to save clien­t’s life over hon­or­ing his wish­es at cen­ter of Supreme Court case, The Advocate, January 15, 2018.) Read the tran­script of the oral argu­ment here. See Representation and Supreme Court.

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