Post authored by Bradley Fuller
The evidence is overwhelming. Your desperate client has been accused of committing an unthinkably horrific crime, and the state has the evidence to prove it. In speaking with your defendant it becomes obvious that she is emotionally and intellectually unstable. She insists that she is completely innocent, but her factual account is clearly erroneous. In a frantic attempt at saving her life you adamantly advise that she admit her culpability and seek the court’s mercy at sentencing. Unconvinced by your expert and reasoned admonishments, your client persists in her fantastical and wholly unbelievable version of events. You, a seasoned, skilled defense attorney understand that they only way of avoiding a life sentence (or worse) is to admit guilt. As the trial date approaches you ponder a vexing professional dilemma; should you present the case that is best for your client, or should you present the absurd case that your client insists upon? The answer rests upon resolving the following fundamental question; is this an issue of mere trial strategy or a fundamental right of the accused?
Such was the predicament that criminal defense attorney Larry English faced when defending his client Robert McCoy of triple murder charges in a Louisiana state criminal court. McCoy v. Louisiana, 138 S.Ct. 1500 (2018). McCoy, accused of killing his mother, stepfather, and son, told his lawyer that he had been out of state at the time of murder, and that the police had slaughtered his family members. Upon review of the discovery materials, it became abundantly clear to attorney English that his client’s story was utter nonsense. The evidence was both credible and abundant, McCoy was surely guilty.
The only way to save McCoy from a certain death sentence, English reasoned, would be to admit culpability during the trial stage of the prosecution. McCoy, however, refused the advice of counsel and demanded that his attorney maintain his innocence before the jury. English raised a bona fide doubt as to his client’s fitness to assist in his own defense. The record states that, “At defense counsel’s request, a court-appointed sanity commission examined McCoy and found him competent to stand trial.” Id.
Before trial English moved to withdraw from the case, and made the court aware of the disagreement with his client. The trial judge refused to allow English to withdraw and admonished him that it would be his decision as the attorney to design and present the best case for his client. During the trial English told the jury that his client, “committed [the] three murders.” McCoy took the witness stand in his own defense and testified that he was in fact actually innocent of the horrific offense. McCoy was ultimately convicted and sentenced to death. Id.
In his appeal, McCoy argued that his fundamental right to maintain his innocence was violated by his attorney. The case made its way all the way to the United States Supreme Court, and in a recent 6 to 3 decision, McCoy’s conviction was overturned. Justice Ginsburg authored the majority opinion which defined English’s concession of guilty to be a, “structural error.” Structural errors concern the abrogation of fundamental rights and are therefore not subject to harmless error review. See, e.g., McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122; United States v. Gonzalez–Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409; Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31.
It is well established that criminal defendants have several inalienable rights that must always be respected. They have the right to plead guilty or not guilty, the right to a jury trial or bench trial, the right to testify or remain silent, the right to proceed pro-se or with the assistance of an effective attorney, the right to file an appeal, and in Illinois the right to request a lessor included offense instruction. While attorneys may advise their clients on how to proceed on these issues, ultimately the decision rests solely with the accused. Counsel, on the other hand makes all decisions with respect to “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008).
At first blush it may seem a rather easy dilemma to resolve. After all, what does it mean to say that all defendant’s have the right to plead not guilty if their own counsel is able to concede guilt at trial. However, upon further inspection it becomes clear that competing rights are involved. Does not a client have a right to effective assistance of counsel? Suppose that attorney English relented to his client’s wishes and presented McCoy’s absurd theory of defense. McCoy would surely have been convicted and sentenced to death. Could McCoy’s appellate counsel then make a meritorious claim of ineffective assistance of counsel?
Additionally, would attorney English be violating his ethical duties by presenting such an obviously fatuous defense? For example, the Illinois Rules of Professional conduct state;
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Note that the state of Louisiana has an identical ethical rule. Louisiana Rules of Professional Conduct 3.3.
However, Rule 1.2 states that, “a lawyer shall abide by a client’s decisions concerning the objectives of representation.”
The Court resolved this issue by finding that attorney English would not have been in violation of ethical rule 3.3 because he was not an actual witness to the events. Even though McCoy’s version of events were seemingly impossible, English was technically not faced with the prospect of presenting perjured testimony by pursuing his client’s desired theory because McCoy never explicitly told his lawyer that he was lying.
Another right to consider is the defendant’s right to testify. It must have been clear to attorney English that McCoy intended to exercise his right to take the witness stand and present his version of events, however absurd. Therefore, English should have known that his efforts to save his client from a death sentence were futile and he should have done his best to bolster his client’s testimony.
The Dissent, authored by Justice Alito, briefly explores an interesting point. Perhaps attorney English did not concede his client’s guilt after all. English argued to the jury that his client perpetrated the heinous acts with diminished mental capacity, and was therefore not guilty of capital murder but perhaps a lesser offense such as second-degree murder. However, this argument seems lame as English did not make a pre-trial filing of the affirmative defense of not guilty by reason of insanity.
Though it is clear from the record that attorney English was simply doing his best to save his client his client from certain execution, he failed to respect McCoy’s most fundamental right, the right to persist in his claim of innocence. As defense attorneys we passionately attempt to achieve the best possible result for our clients, but for better or worse, the case is ultimately theirs. The decision to testify or decline a generous plea offer rests solely with the accused. As the old saying goes, you can lead a horse to water, but you can’t make him admit to triple murder.
About the Author:
Bradley spent the first seven years of his career proudly representing indigent criminal clients as a public defender. During his time in public service he successfully litigated thousands of criminal cases including traffic, DUI, domestic battery, drug, and murder. Additionally, he was honored to serve as the Director of the Stephenson County Drug Court. He now works for a wonderful full-service law firm in the heart of Chicago’s Loop. He recently studied international criminal law at the prestigious United Nations Interregional Crime and Justice Research Institute in Torino, Italy.