{"id":2818,"date":"2018-01-22T03:51:09","date_gmt":"2018-01-22T02:51:09","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=2818"},"modified":"2018-01-22T03:51:40","modified_gmt":"2018-01-22T02:51:40","slug":"mccoy-ethics","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2018\/01\/22\/mccoy-ethics\/","title":{"rendered":"ARGUING YOUR CLIENT\u2019S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective"},"content":{"rendered":"

<\/div><\/p>\n

People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.<\/p>
\n

U.S. Supreme Court Justice Sonia Sotomayor<\/em><\/span><\/p><\/blockquote><\/p>\n

Is it constitutionally permissible for defense counsel to admit his client\u2019s guilt over the client\u2019s express objection?\u00a0 <\/em><\/strong><\/p>\n

\"\"<\/a>This was the question argued before the U.S. Supreme Court last week on 17 January 2018, in Robert McCoy v. Louisiana<\/em>. At play is the Sixth Amendment of the U.S. Constitution:<\/p>\n

In all criminal prosecutions, the accused shall enjoy the right<\/strong> 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.<\/strong><\/p>\n

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):<\/p>\n

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing<\/strong>; 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.<\/p>\n

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.<\/p>\n

The facts in McCoy v. Louisiana<\/em> are as bewildering as some of the arguments advanced by the parties and the\u00a0amici curiae<\/em> 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\u2019s 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\u2019s professional responsibilities. Based on the questions posed by the Justices during oral arguments, their decision should be exceptionally interesting and instructive.<\/p>\n

Some operative facts <\/em><\/strong><\/p>\n

Robert McCoy was charged with killing his wife\u2019s parents and her son. A 911 (emergency) tape recorded his wife\u2019s mother screaming: \u201cShe [the wife] ain\u2019t here Robert. … I don\u2019t know where she is. … The detectives have her.\u201d 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.<\/p>\n

By all accounts, the evidence against McCoy seemed insurmountable \u2013 or in the words of his defense counsel, overwhelming<\/em>. 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 \u2013 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.<\/p>\n

Despite the strength of the prosecution\u2019s 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.<\/p>\n

\"\"<\/a>
Attorney Larry English<\/figcaption><\/figure>\n

McCoy\u2019s defense counsel, Larry English, would have none of McCoy\u2019s 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\u2019s desired theory of defense, English would take it upon himself to decide what, if any, defense he would raise on behalf of McCoy.<\/p>\n

English refused to do any investigation on McCoy\u2019s 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<\/em> would lie under oath. The better strategy (not theory since he refers to it as a strategy \u2013 and there is a considerable difference)1<\/a><\/sup> would be concede to the jury that McCoy killed the victims, hoping that by doing so, the jury would spare McCoy\u2019s life. English was banking, in part, on the jury buying his claims that McCoy was not mentally competent \u2013 even though a court-appointed state psychiatrist and psychologist had found McCoy to be mentally competent, and English \u2013 other than making oral representations \u2013 had no psychiatric evidence to the contrary.<\/p>\n

Maintaining his innocence, McCoy repeatedly refused English\u2019s insistence that he plead guilty in exchange for his life, or that he plead not guilty by reason of insanity \u2013 a prerequisite in Louisiana for raising a diminished capacity defense.<\/p>\n

The trial strategy <\/em><\/strong><\/p>\n

Aside from not supporting McCoy\u2019s request to subpoena his alibi witnesses, in his opening statement English conceded McCoy\u2019s guilt. As the trial progressed, English became the prosecutor\u2019s midwife in delivering guilty verdicts and sending his client to the gallows. Noteworthy are McCoy\u2019s remarks to the trial judge that he was not properly being represented:<\/p>\n

In order to have a probable defense for myself, Your Honor, I have to have my \u2026 witnesses that I need to validate my defense \u2026 I am going to maintain my innocence, Your Honor. \u2026 \u00a0I\u2019ve got a right to face my accusers \u2026 \u00a0. And that is\u2014that\u2019s what I\u2019m going to do.<\/p>\n

\u2026.<\/p>\n

[T]his is my life, Your Honor. \u2026 I need somebody that\u2019s going to work for me, not somebody that\u2019s going to \u2026 work for the prosecutor \u2026. This is a very vital time in my life, Your Honor, and I need help. I don\u2019t need somebody that\u2019s working against me, Your Honor. And he\u2019s worked against me every step of the way.<\/p>\n

\u2026<\/p>\n

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\u2019s 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<\/a>, p. 8, 10, 11).<\/p>\n

These alarming cries by McCoy fell on deaf ears. The judge effectively stripped McCoy of his right to decide the nature of his defense \u2013 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\u2019s words to English:<\/p>\n

[Y]ou are the attorney, sir. \u2026 And you have to make the trial decisions of what you\u2019re going to proceed with. (Corrected Brief for Petitioner<\/a>, p. 10).<\/p>\n

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:<\/p>\n

Opening statement<\/em><\/p>\n