US Can a lawyer defy his client and say he's guilty? SCOTUS to decide.

20:06  12 january  2018
20:06  12 january  2018 Source:   NBC News

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"It' s not like I have a choice, do I?" he said bitterly, refusing to raise his head to meet my eyes. "Prince," I told him , bringing all the authority I had to bear, "You've ALWAYS got a choice. Can a defense lawyer get disbarred for defending a client he knows is guilty ?

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Image: Robert McCoyRobert McCoy, who faces the death penalty for a triple murder. © Provided by NBCU News Group, a division of NBCUniversal Media LLC Image: Robert McCoyRobert McCoy, who faces the death penalty for a triple murder. On trial for his life, Robert McCoy claimed he was the innocent victim of a police conspiracy ─ despite a mountain of evidence that he had killed three members of his estranged wife's family in northwestern Louisiana.

But his lawyer, Larry English, saw the case as unwinnable, and decided to focus on sparing McCoy from execution. English outlined his strategy: admit guilt from the start, then ask the jury for mercy.

McCoy refused. English insisted. They argued, behind closed doors, before the judge and in front of the jury. McCoy tried to fire English, but the judge said it was too late. In August 2011, the jury convicted McCoy of first-degree murder, and sentenced him to die.

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More than six years later, McCoy sits on Louisiana's death row and is still fighting. He wants a new trial, arguing that his constitutional rights as a criminal defendant ─ specifically, the ability to mount his own defense ─ were violated. On Wednesday, the U.S. Supreme Court will hear arguments on the case, which explores the boundaries of two tenets of the American justice system: the adversarial relationship between the government and the accused, and a defendant's ability to make decisions about his fate.

The plan English embraced is not uncommon in today's courtrooms. Defense lawyers often choose to concede that their client is guilty to avoid a worse outcome. It happens often in death penalty cases, when the defendant appears likely to be convicted, and the same jury charged with deciding guilt also chooses punishment. In those cases, the lawyer may decide that it would appear insincere to argue in the first phase that the defendant didn't commit the crime, then turn around and ask for leniency.

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"The stakes get really high when what you're facing is a likely guilty verdict with a likely death penalty, especially when you say 'I didn't do it,'" said Ernie Lewis, executive director of the National Association for Public Defense.

Typically the client goes along with the plan.

McCoy, accused of fatally shooting his estranged wife's mother, stepfather and teen-age son in May 2008, wanted nothing to do with it.

"Your Honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out."

English, who had been hired by McCoy's parents and was not certified to try capital cases, told the Bossier Parish jury in his opening statement that "Mr. McCoy committed these crimes." English called his client "crazy" and argued for a lighter verdict of second-degree murder.

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McCoy interrupted.

"Your Honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out," he told the judge.

The trial continued. McCoy defied English and took the stand in his own defense, testifying that he was out of state at the time of the murders and blaming a police-led drug ring for committing them. Then English gave his closing arguments, saying that McCoy was guilty, but only of second-degree murder, because of mental deficiencies.

Image: Lawyer Larry English.Lawyer Larry English. © Provided by NBCU News Group, a division of NBCUniversal Media LLC Image: Lawyer Larry English.Lawyer Larry English.

Later, after McCoy was convicted of first-degree murder and sentenced to die, English reflected on his decisions in an affidavit. He said he'd become "convinced that the evidence against Robert McCoy was overwhelming" and that his client was paranoid and delusional.

"I felt that as along as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase," English said.

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McCoy set about appealing his conviction, claiming he was denied his constitutional rights to the assistance of counsel and due process. The Louisiana Supreme Court ruled against him.

"Given the circumstances of this crime and the overwhelming evidence incriminating the defendant, admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy," the Louisiana justices ruled.

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The Louisiana court relied in part on a 2002 U.S. Supreme Court ruling on a Florida case that permitted a concession of guilt when a defendant was unresponsive to his lawyer's questions. But it did not address the situation in which a defendant explicitly disagrees ─ a test of the limits of a defendant's autonomy as outlined in the Constitution.

"A lawyer uses whatever strategies are available to them that are ethical and what the law permits him to do."

"It is inconceivable that the framers intended that the assistance of counsel should come at the price of defense counsel being authorized to tell the jury that the accused is guilty, even over the accused's protestations of his own innocence," Richard Bourke, director of the Louisiana Capital Assistance Center, wrote in McCoy's petition to the U.S. Supreme Court.

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The high court agreed in October to hear the case.

McCoy's new lawyers say the concept of attorneys going against their client's wishes by admitting guilt is rare, but less so in Louisiana, where courts have accepted it. English said after the trial that he'd relied on a 2002 state court ruling on a similar case, from adjacent Caddo Parish, that supported the practice.

"This is really a Louisiana rule that grew out of Caddo Parish," Bourke said.

The Louisiana Association of Criminal Defense Lawyers (LACDL) complained in a brief supporting McCoy that the local courts had turned the right to assistance of counsel "into the state's cudgel." The LACDL said that "an uncomfortable number of death sentences in Louisiana are the result of defendants representing themselves or defendants expressly objecting to their lawyers' concessions of guilt."

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McCoy's ex-wife, Yolanda Colston, did not respond to requests for comment.

English, who left his full-time law practice to work in New York real estate development, declined in a recent interview to talk about specifics of the case. But he said he generally did not regret the way he represented clients, saying he did his best to advocate their best interests.

"A lawyer uses whatever strategies are available to them that are ethical and what the law permits him to do," English said.

Eleven states filed a joint brief in support of Louisiana, saying the case "presents a textbook example of a reasonable strategic concession."

But many lawyers say English served McCoy poorly. Among the groups who have filed briefs in support of McCoy are the the National Association of Criminal Defense Lawyers, the American Bar Association, several prominent law professors and Yale Law School's Ethics Bureau.

"Mr. English acted in clear violation of his ethical obligations as a lawyer as well as Mr. McCoy's constitutional rights," the professors and Ethics Bureau said in a joint brief.

Peter Joy, a law professor at Washington University in St. Louis, agreed.

"If the strategy doesn't work, it's the client who is held responsible," Joy told NBC News. "The lawyer goes home. The client goes to prison or death row."

Image: Robert Mccoy, left, and his lawyer Larry English, right.Robert Mccoy, left, and his lawyer Larry English, right. © Provided by NBCU News Group, a division of NBCUniversal Media LLC Image: Robert Mccoy, left, and his lawyer Larry English, right.Robert Mccoy, left, and his lawyer Larry English, right.

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