On May 14th, 2018 the U.S. Supreme Court released a ground-breaking decision in McCoy v. Louisiana (No. 16-8255) which has clearly and properly circumscribed the trial management rights of lawyers in criminal cases in the United States. The court made it abundantly clear that not all decisions with respect to how a criminal trial is to be conducted is reserved for the expertise of trial counsel. The court confirmed that the following decisions are reserved for the client: whether to plead guilty, waive the right to a jury trial, testify in one's own behalf and forgo an appeal.
Of great significance to legal profession is the Court's clear pronouncement that the acts of the lawyer in this case were not governed by the established jurisprudence on ineffective assistance of counsel which required the client to show prejudice from the representation. The Court seems to be very clear in its position that there are certain acts and omissions committed by lawyers in the trial process which are so significant and fundamental as to bring the Court's focus and attention not on the lawyer's competence but in this case the client's autonomy.
Basic Facts From
the Case Headnote:
The appellant was charged with murdering his estranged wife's mother, step-father and son. He pleaded not guilty insisting that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went bad. Although he vociferously insisted on his innocence and adamantly objected to any admission of guilt, the trial court permitted his counsel, Larry English, to tell the jury, during the trial's guilt phase, McCoy "committed the three murders"
English's strategy was to concede that McCoy committed the murders, but argue that McCoy's mental state prevented him from forming the specific intent necessary for a first-degree murder conviction. Over McCoy's repeated objection, English told the jury McCoy was the killer and that English "took the burden off of the prosecutor on that issue. McCoy testified in his own defence, maintaining his innocence and pressing an alibi difficult to fathom. The jury found him guilty of all three first-degree murder counts. At the penalty phase, English again conceded McCoy's guilt, but urged mercy in view of McCoy's mental and emotional issues. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully sought a new trial. The Louisiana Supreme Court affirmed the trial court's ruling that English had authority to concede guilt, despite McCoy's opposition.
Held: The Sixth Amendment guarantees a defendant the right to chose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.
(a)The Sixth Amendment guarantees to each criminal defendant "the Assistance of Counsel for his defence". The defendant does not surrender control entirely to counsel, for the Sixth Amendment, in "granting to the accused personally the right to make his defense," "speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant." Faretta v. California 422 U.S. 806, 819-820
(b) The court distinguished Florida v. Nixon, 543 U.S. 175. Nixon's attorney did not negate Nixon's autonomy by overriding Nixon's desired defence objective, for Nixon was generally unresponsive during discussions of trial strategy and never verbally approved or protested counsel's proposed approach. He complained about counsel's admission of his guilt only after trial. McCoy, in contrast, opposed English's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. Citing Nix v. Whiteside 475 U.S. 157, the Louisiana Supreme Court concluded that English's refusal to maintain McCoy's innocence was necessitated by a Louisiana Rule of Professional Conduct that prohibits counsel from suborning perjury. But in Nix, the defendant told his lawyer that he intended to commit perjury. Here, there was no avowed perjury. English harbored no doubt that McCoy believed what he was saying; English simply disbelieved that account in view of the prosecution evidence. Louisiana's ethical rules might have stopped English from presenting McCoy's alibi evidence if English knew perjury was involved, but Louisiana has identified no ethical rule requiring English to admit McCoy's guilt over McCoy's objection.
(c) The Court's ineffective-assistance-of-counsel jurisprudence, see Strickland v. Washington, 466 U.S. 668, does not apply here, where the client's autonomy, not counsel's competence, is in issue. To gain redress from attorney error, a defendant ordinarily must show prejudice. See id, at 692. But here, the violation of McCoy's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy's sole prerogative. Violation of a defendant's Sixth Amendment-secured autonomy has been ranked "structural error"; when present, such an error is not subject to harmless-error review.
An error is structural if its is not designed to protect defendants from erroneous conviction, but instead protects some other interest, such as "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty." Counsel's admission of a client's guilt over the client's express objection is error structural in kind, for it blocks the defendant's right to make a fundamental choice about his own defence. McCoy must therefore be accorded a new trial without any need to show prejudice.
Ginsburg, J, delivered the opinion of the Court in which Roberts C.J., and Kennedy, Breyer, Sotomayor, and Kagan JJ, joined. Alito, J. filed a dissenting opinion, in which Thomas and Gorsuch, JJ.., joined.
Sixth Amendment:
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 of the 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.
Commentary and Analysis:
Perhaps the most significant point in this very significant decision is the Court's decision that jurisprudence on ineffective assistance of counsel does not apply in the special circumstances of this case. The court's characterization of Mr. English's trial strategy of usurping the client's decision on how to proceed in terms of guilt or innocence as structural error is not only practical and sensible but strongly rooted in the recognition that liberty is a fundamental personal right which must be controlled by the individual. Once this right is taken from the individual their liberty is compromised or violated.
About the author:
E.J. Guiste is a trial and appeal lawyer based in the Toronto area in Ontario, Canada. He handles both trial and appeal work on criminal and civil matters.
Of great significance to legal profession is the Court's clear pronouncement that the acts of the lawyer in this case were not governed by the established jurisprudence on ineffective assistance of counsel which required the client to show prejudice from the representation. The Court seems to be very clear in its position that there are certain acts and omissions committed by lawyers in the trial process which are so significant and fundamental as to bring the Court's focus and attention not on the lawyer's competence but in this case the client's autonomy.
Basic Facts From
the Case Headnote:
The appellant was charged with murdering his estranged wife's mother, step-father and son. He pleaded not guilty insisting that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went bad. Although he vociferously insisted on his innocence and adamantly objected to any admission of guilt, the trial court permitted his counsel, Larry English, to tell the jury, during the trial's guilt phase, McCoy "committed the three murders"
English's strategy was to concede that McCoy committed the murders, but argue that McCoy's mental state prevented him from forming the specific intent necessary for a first-degree murder conviction. Over McCoy's repeated objection, English told the jury McCoy was the killer and that English "took the burden off of the prosecutor on that issue. McCoy testified in his own defence, maintaining his innocence and pressing an alibi difficult to fathom. The jury found him guilty of all three first-degree murder counts. At the penalty phase, English again conceded McCoy's guilt, but urged mercy in view of McCoy's mental and emotional issues. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully sought a new trial. The Louisiana Supreme Court affirmed the trial court's ruling that English had authority to concede guilt, despite McCoy's opposition.
Held: The Sixth Amendment guarantees a defendant the right to chose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.
(a)The Sixth Amendment guarantees to each criminal defendant "the Assistance of Counsel for his defence". The defendant does not surrender control entirely to counsel, for the Sixth Amendment, in "granting to the accused personally the right to make his defense," "speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant." Faretta v. California 422 U.S. 806, 819-820
(b) The court distinguished Florida v. Nixon, 543 U.S. 175. Nixon's attorney did not negate Nixon's autonomy by overriding Nixon's desired defence objective, for Nixon was generally unresponsive during discussions of trial strategy and never verbally approved or protested counsel's proposed approach. He complained about counsel's admission of his guilt only after trial. McCoy, in contrast, opposed English's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. Citing Nix v. Whiteside 475 U.S. 157, the Louisiana Supreme Court concluded that English's refusal to maintain McCoy's innocence was necessitated by a Louisiana Rule of Professional Conduct that prohibits counsel from suborning perjury. But in Nix, the defendant told his lawyer that he intended to commit perjury. Here, there was no avowed perjury. English harbored no doubt that McCoy believed what he was saying; English simply disbelieved that account in view of the prosecution evidence. Louisiana's ethical rules might have stopped English from presenting McCoy's alibi evidence if English knew perjury was involved, but Louisiana has identified no ethical rule requiring English to admit McCoy's guilt over McCoy's objection.
(c) The Court's ineffective-assistance-of-counsel jurisprudence, see Strickland v. Washington, 466 U.S. 668, does not apply here, where the client's autonomy, not counsel's competence, is in issue. To gain redress from attorney error, a defendant ordinarily must show prejudice. See id, at 692. But here, the violation of McCoy's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy's sole prerogative. Violation of a defendant's Sixth Amendment-secured autonomy has been ranked "structural error"; when present, such an error is not subject to harmless-error review.
An error is structural if its is not designed to protect defendants from erroneous conviction, but instead protects some other interest, such as "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty." Counsel's admission of a client's guilt over the client's express objection is error structural in kind, for it blocks the defendant's right to make a fundamental choice about his own defence. McCoy must therefore be accorded a new trial without any need to show prejudice.
Ginsburg, J, delivered the opinion of the Court in which Roberts C.J., and Kennedy, Breyer, Sotomayor, and Kagan JJ, joined. Alito, J. filed a dissenting opinion, in which Thomas and Gorsuch, JJ.., joined.
Sixth Amendment:
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 of the 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.
Commentary and Analysis:
Perhaps the most significant point in this very significant decision is the Court's decision that jurisprudence on ineffective assistance of counsel does not apply in the special circumstances of this case. The court's characterization of Mr. English's trial strategy of usurping the client's decision on how to proceed in terms of guilt or innocence as structural error is not only practical and sensible but strongly rooted in the recognition that liberty is a fundamental personal right which must be controlled by the individual. Once this right is taken from the individual their liberty is compromised or violated.
About the author:
E.J. Guiste is a trial and appeal lawyer based in the Toronto area in Ontario, Canada. He handles both trial and appeal work on criminal and civil matters.
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