On a television lawyer show—take The Good Fight, the best of the genre currently available—a legal case is all about the lawyers. In a typical episode, for example, lawyer Lucca Quinn must prove her client’s innocence, safeguard her job at her law firm, keep up with her pregnancy-related back exercises, win the respect of a tough federal judge, and protect as best she can her relationship with the former prosecutor—who happens to be the father of her unborn child. She usually succeeds brilliantly.
Oh, yeah, almost forgot—her client gets off. Sometimes.
Young lawyers learn early—in clinical training or in practice—that the actual practice of law isn’t much like The Good Fight. The client, not the lawyer, is the center of a case: A lawyer offers advice, and decides on trial strategy, but in the end, the key decisions are the client’s, not the lawyer’s, to make. In a criminal case, those key decisions are whether to plead guilty, whether to seek a jury trial, whether to testify, and, if convicted, whether to appeal.
In our system, those decisions are too important to be left to a third party. As a very fine criminal-defense lawyer I knew used to say to his clients, “When this case is done, it’s going to be a file in my office—but it’s going to be your life.”
I don’t know whether Justice Ruth Bader Ginsburg or Justice Samuel Alito of the Supreme Court watch The Good Fight, but if so, I suspect each sees a different story. At least that’s the conclusion I would draw from McCoy v. Louisiana, the bizarre death penalty case decided Monday by the Supreme Court. In ordinary English, here is the question it posed: If a defendant says he is not guilty, and refuses to plead guilty, can the lawyer nonetheless tell the jury, “My client is guilty”?
Ginsburg, joined by five other members of the Court, said no; Alito, joined by Justices Clarence Thomas and Neil Gorsuch said, in effect, Why not, if the client won’t see reason?
In fairness, the lawyer, Larry English, is a very sympathetic figure. He conceded guilt because he was trying to save his client, Robert McCoy, from almost certain death. McCoy, by contrast, seems like a killer with serious mental problems.
But, as Ginsburg and the majority pointed out, a Louisiana “sanity commission” found McCoy competent to stand trial. The definition of “competence” in this context, given in a Supreme Court case called Godinez v. Moran, is “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” English obviously suspected that determination was wrong, but because he was McCoy’s lawyer, it was binding on him.
Here are the facts. In 2008, someone shot to death the mother, stepfather, and son of Yolanda McCoy, Robert McCoy’s estranged wife. On the night of the murders, McCoy’s mother-in-law was heard on a 911 call screaming, “She ain’t here, Robert!”—followed by shots. Police saw someone who looked like McCoy driving away from the scene in McCoy’s car. The suspect abandoned the car and got away, but in the car was a receipt for the ammunition used in the killings. Surveillance footage showed McCoy buying those bullets on the day of the murder. Two people testified that he had admitted at least one of the killings to them.
Once McCoy was arrested and charged, however, he told a story familiar to anyone who has even dipped a toe into criminal practice: He wasn’t there; he was out of town; it was a frame-up; it was a conspiracy; the police did it themselves just to get him.
In those circumstances, English understandably thought the only real question was whether his client would get the death penalty or life in prison. He tried to convince McCoy to admit guilt, then allow English to put on evidence of his mental illness, and hope for a merciful jury. It’s hard to fault that professional judgment, but McCoy wouldn’t have it. “I did not murder my family,” he said. English tried to withdraw as counsel, but the trial judge refused. “You are the attorney,” the judge said. “You have to make the trial decision of what you’re going to proceed with.”
When the trial began, English told the jury:
My client committed three murders … the evidence that will be put on that screen, that will come from that stand will say that he did it. Mr. McCoy has seen that evidence, but yet he -- in all of his soul he does not believe he committed these crimes … But in layman terms, Mr. McCoy is crazy, ladies and gentlemen.
McCoy later took the stand and told the jury his incredible story, while English argued that he was mentally ill and unable to form the “specific intent” needed for capital murder. The jury found him guilty; after hearing evidence about his mental state, it sentenced him to death.
The Supreme Court Monday set the conviction aside. Ginsburg analyzed the issue as involving a client’s “autonomy to decide … the objective of the defense.” She explained:
Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case. But the client may not share that objective. He 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. … When a client expressly asserts that the objective of “his defen[s]e” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.
When McCoy insisted that he did not commit the murders, Ginsburg said, “a concession of guilt should have been off the table.”
In his dissent, Alito told the story through the lens of English’s dilemma.
Petitioner availed himself of his right to take the stand to tell his wild story. Under those circumstances, what was English supposed to do? … The result of mounting [McCoy’s] conspiracy defense almost certainly would have been disastrous. That approach stood no chance of winning acquittal and would have severely damaged English’s credibility in the eyes of the jury, thus undermining his ability to argue effectively against the imposition of a death sentence … So, again, what was English supposed to do?
The answer to that, though painful, is clear. English wasn’t obligated to tell the jury to believe McCoy. He didn’t have to argue himself that McCoy wasn’t guilty; he could confine his own argument to the mental-state part of the case. (As Alito put it, he could have said, “I submit to you that my client did not have the intent required for conviction” of capital murder.) But he couldn’t keep McCoy off the stand. And he couldn’t say, “Don’t believe him. He’s guilty.”
The case is agonizing, because McCoy probably shouldn’t have been allowed to stand trial; once found competent, he insisted on marching to his doom. But the legal question, to me, doesn’t seem hard. McCoy v. Louisiana is the story of McCoy, and the story of the victims he slaughtered. Even though it put Larry English through the wringer, it was not his story.
Alito is absolutely right that McCoy didn’t know his own best interests. The logical result of his opinion, however, would be a system where lawyers decide what is best for clients and ignore their wishes—where, in effect, a defense lawyer acts as judge and jury.
Even Lucca Quinn doesn’t do that.