The United States Supreme Court will review a Louisiana death-penal­ty case to answer the ques­tion ​“Is it uncon­sti­tu­tion­al for defense coun­sel to con­cede an accused’s guilt over the accused’s express objec­tion?” On September 27, the court agreed to hear McCoy v. Louisiana, a case in which defense coun­sel informed the jury in his open­ing argu­ment that Robert McCoy (pic­tured) — who was charged with mur­der­ing the son, moth­er, and step­fa­ther of his estranged wife — had ​“com­mit­ted these crimes,” even though McCoy had con­sis­tent­ly main­tained his inno­cence and repeat­ed­ly object­ed to the defense strat­e­gy. The case is one of a num­ber of Louisiana death penal­ty cas­es in which defense lawyers have told death penal­ty juries, against the defen­dan­t’s wish­es, that their clients had com­mit­ted the killing. In McCoy’s case, the pros­e­cu­tion offered a plea deal that McCoy turned down against the advice of his lawyer, Larry English. When English lat­er told McCoy that he intend­ed to con­cede McCoy’s guilt, McCoy object­ed and tried to fire English two days before the start of the tri­al. The tri­al court refused to remove English from the case, and also denied McCoy’s request to rep­re­sent him­self. When English con­ced­ed guilt dur­ing the open­ing state­ment, McCoy inter­rupt­ed, say­ing the police had killed the vic­tims. He lat­er took the stand and tes­ti­fied that he had been framed for the mur­ders by a drug traf­fick­ing ring head­ed by law enforce­ment. McCoy’s peti­tion for review was sup­port­ed with ami­cus (friend of the court) briefs by the Yale Law School Ethics Bureau and the Louisiana Association of Criminal Defense Lawyers. English had argued that he had admit­ted guilt as part of his eth­i­cal duty to try to save McCoy’s life. The Ethics Bureau, how­ev­er, argued that con­ced­ing McCoy’s guilt over his express oppo­si­tion was an ​“egre­gious” vio­la­tion of the lawyer’s eth­i­cal duty. It wrote that the rules of ethics ​“do not allow a lawyer to sell out his client in court against their wish­es.” The brief of the Louisiana defense lawyers, joined by the Promise of Justice Initiative, said the court’s refusal to per­mit McCoy to obtain new coun­sel was emblem­at­ic of a pat­tern of deci­sions under­min­ing the right to mean­ing­ful rep­re­sen­ta­tion in Louisiana death penal­ty cas­es. The brief point­ed to 12 cap­i­tal cas­es in which Louisiana courts resolved dis­agree­ments between cap­i­tal defen­dants and their lawyers in a man­ner that was detri­men­tal to the defen­dant. The brief said that, in four cas­es since 2000, the Louisiana courts had allowed cap­i­tal defense coun­sel to con­cede guilt over their clients’ express objec­tion. In four oth­er cap­i­tal cas­es dur­ing that time frame, cap­i­tal defen­dants were required to rep­re­sent them­selves to avoid hav­ing their lawyer con­cede guilt. Four oth­er times, invok­ing the same right to per­son­al auton­o­my over lit­i­ga­tion deci­sions that they reject­ed in the pri­or cir­cum­stance, the state courts gave cap­i­tal defen­dants who want­ed to waive rights final say in doing so. ​“What can be dis­tilled from Louisiana’s approach is that when a ques­tion about a defendant’s auton­o­my aris­es, Louisiana appears to resolve the ques­tion in favor of expe­di­en­cy, rather than auton­o­my or dig­ni­ty,” the brief said. ​“Rather than a prin­ci­pled and con­sis­tent com­mit­ment to the auton­o­my and dig­ni­ty of cap­i­tal defen­dants, the Louisiana Supreme Court has adopt­ed a set of rules that ame­lio­rates always to the ben­e­fit of the state, and nev­er to the defendant.”

(M. Sherman, ​“Court to Rule When Lawyer Says ​‘Guilty,’ but Client Objects,” Associated Press, September 28, 2017; D. Cassens Weiss, ​“Can a lawyer con­cede guilt over a clien­t’s objec­tion? Supreme Court to con­sid­er con­sti­tu­tion­al issue,” ABA Journal, September 28, 2017.) Read the Supreme Court briefs filed by the par­ties and the friend-of-the-court briefs here. See Representation and U.S. Supreme Court.

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