Lawyers are “assistants” and to “gain assistance, a defendant need not surrender control entirely to counsel.” That was the core reasoning behind the Supreme Court’s May 14, 2018, opinion in McCoy v. Louisiana, 584 U. S. ____ (2018). McCoy had been charged in Louisiana with murdering his estranged wife’s mother, stepfather and son and the state was seeking the death penalty. From the start, he protested his innocence, claiming to have had nothing to do with the killings at all. Expressly instructing his lawyer not to make any admission of guilt, he was “furious” when, two weeks before trial, he found out that his lawyer had decided to do exactly the opposite. Far from pleading complete innocence, the lawyer had decided to admit that McCoy committed the killings and hoped to secure a conviction for second-degree murder on the basis that McCoy was not mentally capable of forming the necessary specific intent to commit first-degree murder. Such a conviction would have avoided the death penalty. When McCoy found out about his lawyer's plan, he asked the trial court for permission to terminate the lawyer. The court refused to grant such permission, telling the lawyer that it was his “trial decision” as to what case to present. The lawyer went on to tell the jury during his opening statement that McCoy "committed [the] three murders."
The Supreme Court, in a 6-3 holding, found that a lawyer cannot override his client’s express direction to to maintain innocence even if the lawyer believed that the best chance of avoiding the death penalty was an admission of guilt. Writing for the majority, Justice Ginsburg wrote that while lawyers can decide upon issues of “trial management,” such as “‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence,’” some decisions were reserved to the client including, crucially, “whether to plead guilty.” So long as the client was not intending to commit perjury, “[p]resented with express statements of the client’s will to maintain innocence . . . counsel may not steer the ship the other way.” Here, the lawyer did not doubt McCoy’s claim of innocence; he just believed that there was a better strategy to avoid a death sentence. But that strategic belief could not override the client’s express instructions. The trial court was, therefore, wrong to permit McCoy’s lawyer to proceed as he did. And, since the error deprived McCoy of his “[a]utonomy to decide that the objective of the defense is to assert innocence,” McCoy did not need to show that he was prejudiced by his lawyer's conduct; the error was a structural one that created a fundamental flaw in the trial itself.
It is clear, therefore, that the Supreme Court views a lawyers conduct as falling within two distinct categories, each of which are evaluated very differently. No matter how strongly a lawyer might disagree, they do not have the power to overrule a client’s decision regarding a fundamental issue such as “whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, [or] forgo an appeal.” If the lawyer does so, not only is a later conviction challengeable, but there is no need for the client to show that he was prejudiced. But where a lawyer makes a decision during trial about how to advance a client’s chosen strategy, such as a decision about which witnesses to call, how to present that strategy to the jury during closing arguments, or what exhibits to present, those decisions are reviewed as questions of whether the lawyer was ineffective and a client has to show that his lawyer was deficient and that he was prejudiced by that deficiency. Deciding which type of claim is involved, and how to best present it on appeal or in post-conviction litigation, requires a lawyer experienced in handling such matters to maximize a client’s chances of success.
If you have any questions about criminal trials, appeals, counsel performance, or post-conviction litigation, including writs of habeas corpus, please contact Andrew Horne at firstname.lastname@example.org or call (212) 374-9791.
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