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Supreme Court to consider whether a lawyer can admit a client's guilt against his wishes

By AUDREY TAYLOR Jan 17, 2018

Supreme Court justices will consider Wednesday if a defendant’s attorney can admit a client’s guilt to a jury – as a concession defense - against the client’s expressed objection.

Robert McCoy, in 2011, was tried, convicted, and sentenced to death for the 2008, shooting and killing of his estranged wife’s mother, step-father, and son.

McCoy was initially assigned a public defender but asked the court to dismiss his lawyer saying his relationship with his attorney had broken down.

McCoy's family hired, Larry English, to represent their son Robert. English, after reviewing the case, told McCoy the case was not winnable and a plea deal would be best but McCoy, “adamantly refused to take a plea” according to court documents.

McCoy maintained his innocence and claimed to have an alibi, but English felt he had to do what was best for his client.

In a sworn affidivde, English explains his reasoning “As time passed I became convinced that the evidence against Robert McCoy was overwhelming. I negotiated with the Distinct Attomey's Office to open up the possibility of a plea of guilty in return for a sentence of life imprisonment”

English told McCoy he, “intended to concede to the jury” that McCoy was the killer. English admits, in sworn documents, that “Robert told me not to make that concession but I told him that I was going to do so. I explained that I felt I had an ethical duty to save his life, regardless of what he wanted to do.”

English told ABC News in an interview that "In every trial a lawyer has options presented to him under the law and you use every tool to advance your clients cause."

He added, “ this was the best lawyering I did in my life”.

McCoy's representation will argue before the Supreme Court on Wednesday that his Sixth Amendment rights were violated.

ABC News asked Steven Schwinn, a constitutional expert and law professor at the John Marshall Law School to discuss the case.

How did the case get to the Supreme Court?
McCoy was sentenced to death (three times) in the trial court. After he retained new counsel, he moved for a new trial; this was denied. He then appealed, but the Louisiana Supreme Court affirmed his conviction and sentence. He petitioned the Supreme Court for review, and the Court agreed to hear the case.

What question(s) are the Justices being asked to decide?
Does a criminal defense attorney have to consult with the defendant and get the defendant’s permission before conceding guilt at trial? In death cases, a criminal defense attorney might use this strategy in order to avoid a death sentence. The reasoning goes like this: If we fess up to the crime at trial, the judge or jury might be more sympathetic at sentencing. This is called a “concession defense.” So the real question in the case is this: Can a criminal defense attorney use a concession defense against the expressed wishes of the criminal defendant in a death case?

What does the Sixth Amendment say?
As relevant to this case, it only says that a criminal defendant has the right to “the assistance of counsel for his defence [sic].” The parties wrangle over whether this requires a defense attorney to get the defendant’s permission before employing a concession defense in a death case. Parsing the language, the government focuses on “the assistance of counsel” (emphasizing that defense attorneys have a great deal of latitude in setting legal strategy), while McCoy focuses on “his defence [sic]” (emphasizing that ultimately the defense attorney is simply “assisting” the defendant in presenting the defendant’s defense).

What is the national impact of this case?
The ruling will likely be quite narrow, addressing an attorney’s use of a concession defense against his or her client’s wishes in a death case. (That’s because the Court will want to avoid writing Sixth Amendment law for factual situations that aren’t before it.) I don’t know how many cases fall into this category, so it’s hard to say how broadly the ruling will apply.

In addition to the impact on cases, there is a split in the lower courts, meaning that some state high courts and federal courts have disagreed on the answer to the core question. This case will resolve that split.

How might the Justices rule?
It’s hard to say. The Court doesn’t always split along conventional ideological lines in criminal procedure cases, so the usual math doesn’t necessarily apply. On one hand, on the core question—whether the attorney had to get McCoy’s approval before employing the concession defense—the facts of the case are quite compelling in favor of McCoy. But on the other hand, on the underlying criminal culpability, the facts may not be so favorable to McCoy. In short, the facts of this case matter quite a bit: Justices concerned about procedure (irrespective of result) might lean toward McCoy, while Justices concerned about result (and less about procedure) may lean toward the government.

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