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.