ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective

    People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.


    U.S. Supreme Court Justice Sonia Sotomayor

    Is it constitutionally permissible for defense counsel to admit his client’s guilt over the client’s express objection? 

    This was the question argued before the U.S. Supreme Court last week on 17 January 2018, in Robert McCoy v. Louisiana. At play is the Sixth Amendment of the U.S. Constitution:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    The right to assistance of counsel expressed in the Sixth Amendment is akin to the minimum guaranteed rights expressed in Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR):

    To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

    And so, while the arguments advanced before the U.S. Supreme Court are steeped in the context of the U.S. Constitution, the U.S. / common law jurisprudence, and the code of ethics and professional responsibility applicable to lawyers practicing before the Louisiana courts, they are equally instructive to anyone practicing before any of the international(ized) criminal tribunals or courts.

    The facts in McCoy v. Louisiana are as bewildering as some of the arguments advanced by the parties and the amici curiae are absorbing. Significantly, this case raises some interesting legal and ethical issues. In this post I will explore some of these legal arguments and reflect on how they may relate to the practice before the international(ized) criminal tribunals and courts, and defense counsel’s professional responsibilities. Expect another post when the U.S. Supreme Court renders its decision, where I will explore the legal arguments and reflect on how they may relate to the practice before the international(ized) criminal tribunals and courts, and defense counsel’s professional responsibilities. Based on the questions posed by the Justices during oral arguments, their decision should be exceptionally interesting and instructive.

    Some operative facts

    Robert McCoy was charged with killing his wife’s parents and her son. A 911 (emergency) tape recorded his wife’s mother screaming: “She [the wife] ain’t here Robert. … I don’t know where she is. … The detectives have her.” This was followed by the sound of a gunshot, with the phone line going dead. McCoy was arrested a month later, with the gun that was used in the killings hidden under the seat in the vehicle he was in. Charged with the three murders, McCoy was facing the death penalty.

    By all accounts, the evidence against McCoy seemed insurmountable – or in the words of his defense counsel, overwhelming. The facts presented in the Supreme Court brief filed by Louisiana (the Respondent) present a compelling case for conviction based on the trial record. Hard to imagine anything other than guilty verdicts flowing from the evidence. Put differently, what would have been at play at the trial was not the verdict but the sentence – since once the jury convicts, it then decides whether the accused lives the rest of his life in prison or dies at the hands of the state by lethal injection.

    Despite the strength of the prosecution’s evidence and perhaps the inevitability of a conviction, McCoy maintained his innocence throughout the trial, claiming that he was elsewhere at the time of the murders. He also claimed to have witnesses who would vouch for his alibi. As part of his defense, McCoy maintained that he was being framed by the police because he knew that the police were involved in drug trafficking.

    Attorney Larry English

    McCoy’s defense counsel, Larry English, would have none of McCoy’s defense. As far as he was concerned, anyone who would be advancing such grand delusions of a conspiracy in the face of overwhelming (and to some extent beyond dispute) evidence in a death penalty case, was obviously not competent to assist in his own defense. In other words, irrespective of McCoy’s desired theory of defense, English would take it upon himself to decide what, if any, defense he would raise on behalf of McCoy.

    English refused to do any investigation on McCoy’s alibi. He also refused to interview the alibi witnesses. Convinced that McCoy was guilty of the murders, English felt it would have been unethical of him to advance a defense that he knew to be false, and for him to call the alibi witnesses which he knew would lie under oath. The better strategy (not theory since he refers to it as a strategy – and there is a considerable difference) 1  The theory of the defense explains why the evidence at the end of the trial supports an acquittal, while strategies and tactics are decisions how to establish the theory of the defense during the proceedings. would be concede to the jury that McCoy killed the victims, hoping that by doing so, the jury would spare McCoy’s life. English was banking, in part, on the jury buying his claims that McCoy was not mentally competent – even though a court-appointed state psychiatrist and psychologist had found McCoy to be mentally competent, and English – other than making oral representations – had no psychiatric evidence to the contrary.

    Maintaining his innocence, McCoy repeatedly refused English’s insistence that he plead guilty in exchange for his life, or that he plead not guilty by reason of insanity – a prerequisite in Louisiana for raising a diminished capacity defense.

    The trial strategy

    Aside from not supporting McCoy’s request to subpoena his alibi witnesses, in his opening statement English conceded McCoy’s guilt. As the trial progressed, English became the prosecutor’s midwife in delivering guilty verdicts and sending his client to the gallows. Noteworthy are McCoy’s remarks to the trial judge that he was not properly being represented:

    In order to have a probable defense for myself, Your Honor, I have to have my … witnesses that I need to validate my defense … I am going to maintain my innocence, Your Honor. …  I’ve got a right to face my accusers …  . And that is—that’s what I’m going to do.

    ….

    [T]his is my life, Your Honor. … I need somebody that’s going to work for me, not somebody that’s going to … work for the prosecutor …. This is a very vital time in my life, Your Honor, and I need help. I don’t need somebody that’s working against me, Your Honor. And he’s worked against me every step of the way.

    I tried to get Mr. English removed, Your Honor, and you still kept Mr. English on my case, Your Honor, when I told you Mr. English was not putting up any type of defense for me. He’s sitting there vindicating, Your Honor, that I murdered my family. I did not murder my family, Your Honor. I had alibis of me being out of state. Your Honor, this is unconstitutional for you to keep my attorney on my case when this attorney is completely selling me out. (Corrected Brief for Petitioner, p. 8, 10, 11).

    These alarming cries by McCoy fell on deaf ears. The judge effectively stripped McCoy of his right to decide the nature of his defense – a right recognized as belonging to the defendant and not to defense counsel, especially when in exercising this right the defendant is maintaining his innocence and insists on putting the prosecution through the paces in meeting its burden in proving the charges beyond a reasonable doubt. In the judge’s words to English:

    [Y]ou are the attorney, sir. … And you have to make the trial decisions of what you’re going to proceed with. (Corrected Brief for Petitioner, p. 10).

    And so English proceeded as he saw fit. Here are some of the most notable admissions, omissions, and commissions. As you read on, ask yourselves whether you, English, the prosecutor, the trial judge, or any of the Justices on the Louisiana Supreme Court or U.S. Supreme Court would want to be represented in this fashion when facing the death penalty:

    Opening statement

    • Referring to himself as the “district attorney” (i.e., the prosecutor).
    • Stating: “There is no way reasonably possible that you can listen to the evidence in this case” and not conclude that McCoy was “the cause of these individuals’ deaths.”
    • Stating: “[McCoy is] so wracked with guilt about the case that he has attempted to kill himself six times.”
    • Stating: “[T]he evidence is overwhelming that McCoy caused the deaths of these people.”
    • Stating: “I’ve just told you he is guilty.”
    • Claiming that even though McCoy was found to be competent to stand trial, he was “crazy” and therefore he could only be guilty of second degree murder. (Corrected Brief for Petitioner, p. 11-12).

    Defense case

    • Impeaching McCoy who testified in his own defense.
    • Undercutting McCoy’s testimony through the factual predicate of the questions posed.
    • Referring to inculpatory evidence the prosecutor had failed to introduce.
    • Failing to call any experts witnesses to support the claim that McCoy was not competent to form the requisite mens rea – specific intent. (Corrected Brief for Petitioner, p. 12-15).

    Closing argument

    • Stating: “I … told you that after you saw the evidence in this case no reasonable person could come to any other conclusion that Robert McCoy was the cause of these people’s death. So, I took that burden off of Mr. Marvin [the district attorney]. I took that burden off of you. And the evidence said what Mr. Marvin said it was going to be and it said what I told you it was going to be.”
    • Stating: “McCoy … believes that he was in Houston, Texas [place of alibi], when in fact the evidence is overwhelming that he was in Bossier City [place where murders occurred].”
    • Misstating the law by erroneously claiming that since McCoy could not form the requisite specific intent due to his diminished capacity, he was guilty of only second degree murder. This was patently wrong. Aside from not calling expert witnesses to give evidence that McCoy was not competent at the time he committed the killings, and aside from the fact that in Louisiana (as its Supreme Court would later note) diminished capacity cannot be raised independently from an insanity plea (i.e., arguing not guilty by reason of insanity – which was not done in this case), second degree murder is also a specific intent crime in Louisiana.
    • Failing to request a jury instruction that would allow the jury to apply the theory proposed by English as to why McCoy was only guilty of second degree murder.

    Sentencing

    • Failing to call mitigation witnesses to give evidence as to why the Jury should spare McCoy the death penalty.
    • Calling the State psychiatrist to testify that McCoy:
      1. was competent to stand trial (in other words McCoy was not “crazy”): there was “no evidence to suggest that [McCoy] had a mental illness that would interrupt his ability to know right from wrong regarding the … murders he had been convicted of;”
      2. had a “narcissistic personality disorder” and “transforms, rewrites, refabricates his views of himself … to maintain his self image;” and
      3. lied about his background. (Corrected Brief for Petitioner, p. 16-17).

    The verdict & state appeal 

    Considering the damning admissions by English, his effective cross-examination and impeachment of McCoy, his relentless attempts to convince the jury that McCoy was indeed guilty of killing the three victims, and his failure to offer a viable defense available under Louisiana law, it should come as no surprise that McCoy was found guilty of three counts of first degree murder, and sentenced to death. The Louisiana Supreme Court upheld the verdict and death sentence. (Corrected Brief for Petitioner, p. 17).

    Submissions before the Supreme Court

    At first blush, it seems beyond cavil that English violated McCoy’s Sixth Amendment rights by grossly disregarding his client’s instructions, effectively pleading McCoy guilty, albeit for intentions that no doubt were good and noble – to save McCoy from the death penalty. Where is the dilemma? Is the client not in charge of his case, his defense, his destiny? Can defense counsel pronounce his client’s guilt over the client’s insistence of innocence? Can defense counsel relieve the prosecution of its burden of proof?

    Unsurprisingly, the jurisprudence does not lend itself to a black and white conclusion on the legal issues raised and arguments made before the U.S. Supreme Court. After all, why else would this case come before the U.S. Supreme Court unless there was significant grey area, requiring some clarity.

    Personally, I cannot reconcile the notion that it can ever be constitutionally or ethically permissible, however prudent, to admit over the client’s express objections his or her guilt before a trier of fact (jury or judge) – save in instances where there are findings by the court of diminished capacity to such a degree as to render the client unable to knowingly, intelligently, and meaningfully, assist in his or her own defense. But from some of the hypotheticals posed by some of the Justices during oral argument, it did not appear that there was a consensus on whether under a given set of circumstances, even if the accused is mentally competent, defense counsel should categorically be prohibited from overriding the client’s instructions.

    Without going into the weeds, McCoy’s lawyers, headed by former U.S. Solicitor General, Seth P. Waxman, focused on the narrow issue of what the framers of the U.S. Constitution had in mind in drafting the Sixth Amendment. His basic argument (and he steadfastly held on to it despite the constant attempts by the Justices to engage him in hypotheticals which seemed off point), was that irrespective of the type of criminal case, the accused is the master of his defense theory; defense counsel cannot select a theory that the client opposes – and as in this instance, one that directly contradicts the client’s theory of the defense. It is not that defense counsel are not entrusted in making decisions throughout the trial – even when they are not to the satisfaction of the client (e.g., on how to cross-examine a witness) – but some decisions are solely for the client to make.

    One hypothetical I can think of (not mentioned during oral arguments) is in a rape case. There is evidence that the defendant had sexual contact with the complaining victim. Defense counsel thinks the better theory of the case is that yes, there was sexual contact, but it was consensual and thus not a crime. The defendant wants to run a defense that he had no sexual contact (perhaps because he is married) and that if the complaining victim was raped, it was by someone else. Perhaps as part of this defense, the defendant also wants to include an alibi defense, and he has witnesses that will vouch for his alibi. While it may be prudent for defense counsel to impress upon his client that the better course of action is the consensual sex theory of the case, at the end of the day, it is the client’s call. As for any suspicions defense counsel may have as to the veracity of the alibi witnesses, unless defense counsel has been told by the client that the witnesses will be lying under oath, it is not for defense counsel to judge whether a witness is going to testify or is testifying truthfully. And as I have noted elsewhere 2  See Michael G. Karnavas, Defence Counsel Ethics, the ICC Code of Conduct and Establishing a Bar Association for ICC List Counsel, Int’l. Crim. L. Rev., (16) 1048 – 1116 (2016). under this given scenario, defense counsel has no choice but to run that defense and put on those witnesses in furtherance of the defense – even if defense counsel has reservations as to the viability of the defense.

    In keeping with this argument on interpreting the Sixth Amendment rights, there were two very interesting amici briefs. Looking at the historical context how the Sixth Amendment came about, and whose right is it to decide on the theory of defense, the Criminal Bar Association of England and Wales, provided a cogent brief that also demonstrates that the common law world over, the right to decide on the theory of the defense case belongs to the defendant and not defense counsel (see here). Looking at the relationship between defense counsel and the defendant from the principles of agency law (defense counsel as agent to defendant as master), the brief by the Ten Law School Professors and the Ethics Bureau at Yale in Support of Petitioner, nicely complements Waxman’s written and oral arguments (see here).

    Louisiana had a two-prong argument. First – relying on Faretta v .California – McCoy had not expressly and unequivocally requested to proceed pro se, in which case he would have been entitled to preserve the actual control of the case. By agreeing to be represented by defense counsel, McCoy gave up some autonomy, which included among other things, the theory (or strategy as it put it) of how the case would be defended (see Brief for Respondent, p. 28-30). And second – relying on Strickland v. Washington – McCoy’s claims fall under the rubric of infective assistance of counsel (in which case his claims merit no relief since English’s strategy, even if not successful, was appropriate in light of his objective to save McCoy’s life). The undertow of Louisiana’s argument was that since this was a death penalty case, the defense lawyer is in a better place to formulate the client’s defense – in effect to save the client from his own poor judgment and unrealistic expectations. Hence the need to take over and override a client’s express wishes if it is for the greater good of advancing a strategy to save the client’s life (see Brief for Respondent, p. 46-52).

    In presenting the gist of the arguments made before the U.S Supreme Court, I have generously generalized in order to keep this post moderately short. For those interested in the details, I highly recommend reviewing the written submissions (here) and the transcript of the oral arguments (here). For those who may also be interested in hearing some very fine oral arguments and to get a flavor of what it is like to appear before the Supreme Court of the United States, you can listen to the audio recordings here.

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    Author: Michael G. Karnavas

    Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

    One thought on “ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective”

    1. Michael, you are a true citizen of the world. While I understand how a person could disagree with some of your viewpoints, I cannot understand why your work is not unanimously recognized as selfless, necessary and absolutely essential to our world. I appreciate all that you do for humankind. Hope to catch up with you again soon.

      By the way, feel free to publish this on your blog with or without my name–your call. I think it’s important that people recognize your work.

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