Facing the Death Penalty With a Disloyal Lawyer

WASHINGTON — Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer paid him a visit. It was the summer of 2011, and the two men met in a holding cell in a Louisiana courthouse. Mr. McCoy, who was facing the death penalty, told his lawyer he was innocent.

Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted to clear his name.

The lawyer, Larry English, said he had a different strategy.

“I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled in a sworn statement. “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.”

Capital trials have two phases. The first concerns guilt, the other punishment. Mr. English reasoned that he would forfeit his credibility with the jury if he contested what he believed was overwhelming evidence against his client in the trial’s first phase. He feared the jurors would not listen to him when he begged them to spare Mr. McCoy’s life in the second phase.

Conceding guilt in a capital case is sometimes the right play. Last month, the Supreme Court agreed to decide whether it is permissible even if the man whose life is at stake objects.

Mr. McCoy was accused of killing Christine Colston Young, Willie Young and Gregory Colston, who were the mother, stepfather and son of Mr. McCoy’s estranged wife. There was substantial evidence that he had done so. There was also reason to think that Mr. McCoy’s belief in his innocence was both earnest and delusional.

There was no ambiguity in Mr. McCoy’s position, Mr. English recalled.

“I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down.

“Mr. English is your attorney, and he will be representing you,” the judge said.

Mr. McCoy’s parents had paid Mr. English $5,000 to defend their son. They had borrowed the money, using their car as collateral.

In a letter to Judge Cox before the trial, Mr. McCoy’s parents said they rued their decision. Mr. English “is neither prepared nor capable of adequately representing our son,” they wrote. When they tried to discuss the case with Mr. English, they wrote, he responded with a tirade and “insulted us by talking to us as if we were children.”

During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes.”

Mr. McCoy objected. “Judge Cox,” he said, “Mr. English is simply selling me out.”

“I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

Whatever its wisdom, Mr. English’s trial strategy failed. Mr. McCoy was convicted and sentenced to death. He appealed to the Louisiana Supreme Court, saying his lawyer had betrayed him. The court ruled against him.

“Given the circumstances of this crime and the overwhelming evidence incriminating the defendant,” the court said, “admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

The decision relied on a unanimous 2004 ruling from the United States Supreme Court in Florida v. Nixon, which said lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary.

That is the question in the new case, McCoy v. Louisiana, No. 16-8255.

The right answer, Louisiana prosecutors told the justices, is that lawyers may ignore their clients’ wishes. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” they wrote in a brief urging the court not to hear the case.

Mr. English declined requests for an interview, saying he would not comment until after the Supreme Court ruled.

In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school clinic, said Mr. English had essentially switched sides. “Far from testing the prosecution’s case,” the brief said, “Mr. English seemed downright eager to advance it.”

Mr. McCoy’s situation is not particularly unusual, according to a second supporting brief, this one filed by the Louisiana Association of Criminal Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. “In Louisiana,” the brief said, “a capital defendant has no right to a lawyer who will insist on his innocence.”

Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

The Sixth Amendment guarantees a right to “the assistance of counsel.” Those words, the Supreme Court said in 1975 in Faretta v. California, indicate that the client is the boss.

“It speaks of the ‘assistance’ of counsel,” Justice Potter Stewart wrote, “and an assistant, however expert, is still an assistant.”

Source: The New York Times, Adam Liptak, October 9, 2017

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