Confession of Error

There aren’t many, but there are some decisions that reside exclusively in the hands of the defendant.

The lawyer’s province is trial management, but some decisions are reserved for the client—including whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.

Certainly we guide them. We inform them. We explain the tactical and strategic benefits and detriments of their choices, and the very real world consequences of their choices. And yet, hard as it may be to watch a defendant, a client, make a decision that you are certain will be suicidal, the choice remains the client’s. Ultimately, it’s his life, not yours. 

This might seem a difficult line to swallow, but is it controversial? The Supreme Court, in the 5-3 decision in McCoy v. Louisiana, held that the attorney cannot ignore his client’s decision to maintain his innocence and concede that he engaged in the conduct of which he’s accused.

As the dissent notes, it fell short of pleading guilty against the defendant’s wishes, but the attorney effectively confessed on behalf of his client to the commission of the conduct of killings.

On May 5, 2008, Christine and Willie Young and Gregory Colston were shot and killed in the Youngs’ home in Bossier City, Louisiana. The three victims were the mother, stepfather, and son of Robert McCoy’s estranged wife, Yolanda. Several days later, police arrested McCoy in Idaho. Extradited to Louisiana, McCoy was appointed counsel from the public defender’s office. A Bossier Parish grand jury indicted McCoy on three counts of first-degree murder, and the prosecutor gave notice of intent to seek the death penalty. McCoy pleaded not guilty. Throughout the proceedings, he insistently maintained he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong.

McCoy faced death for these killings, and his attorney believed that the evidence that he was the killer was overwhelming, McCoy’s denials notwithstanding. From the perspective of strategy, the attorney was faced with a conundrum, concede the shooting and fight to save his client’s life, or do as his client preferred.

Below the surface of his attorney’s decision was whether McCoy was competent to make the decision, to appreciate the reality of what he was facing, make a wise choice for a sound reason. As the saying goes, defendants are presumed innocent, not intelligent. Nor sane. They often lack the capacity for logical thought. They harbor beliefs, often without the lawyer’s knowledge, that God will save them. They devolve into fantasy because the reality of their situation is too hard to accept.

They’re not legally incompetent, but they’re also not competent to make a wise or rational decision. As the attorney defending a client in a death case, do you knowingly allow your quasi-coherent client to choose a path the you are nearly certain will end in their conviction and execution? Do you do everything possible to save their life, even if it means ignoring their claim of innocence?

As the McCoy court held, the answer is no. As hard as it may be to essentially stand by while your client makes a decision that you are certain will doom him to death, it’s his life. It’s his death. It’s not about you, but your client.

This doesn’t mean you don’t do everything in your power to persuade him to make the choice you believe is best for your client. You explain, implore, cajole and occasionally yell at the recalcitrant defendant when they just won’t take a good, hard look at the reality of their situation. This, too, is your duty, to do everything in your power to provide your client with the best information and understanding of what he’s facing so that he can make the best choice.

As the dissent notes, the attorney was placed in a predicament. McCoy wanted to defend against the allegations by proffering the police conspiracy/drug deal gone bad allegation.

So petitioner and English were stuck with each other, and petitioner availed himself of his right to take the stand to tell his wild story. Under those circumstances, what was English supposed to do?

The Louisiana Supreme Court held that English could not have put on petitioner’s desired defense without violating state ethics rules,

It’s not that the lawyer’s situation was untenable,* but that’s not the bar by which the defendant’s constitutional rights are determined. What was English supposed to do? There are two answers: first, figure something out. Second, who cares? It’s not about English, but McCoy.

But the dissent suggests this isn’t a realistic scenario, one that occurs with sufficient regularity to make it a serious problem. That’s not at all true, and reflects the absence of a justice knowledgeable about criminal defense on the Court. Recalcitrant, and irrational, defendants are commonplace, whether it’s about the specifics of conceding a fact that can’t be disputed or about leaving the trial strategy to the detached lawyer rather than the emotion-bound, if marginally rational, defendant.

While most defendants will take their lawyer’s advice and recognize that the lawyer has a better grasp of what has a greater likelihood of success than the defendant, his spouse, the neighbor or the mailman, it’s hardly uncommon for clients to insist that the lawyer adhere to their decisions. When the decision is reserved to the client, the lawyer’s duty is clear. Awful, sometimes, but clear.

It can be brutal to be party to a disaster that will cost someone his life. Here, the lawyer did what he thought was best to save a life, knowing that the defendant had no viable defense to the commission of the killings. The lawyer confessed the killings to save his client. It was a noble choice. It was also not his choice to make. We don’t have to like it, but we must nonetheless respect the fact that the Constitution gives certain decisions to the client no matter what we believe to be in his best interest. We must respect the fact that it’s his life at stake, not ours, no matter how bad he may be at saving himself.

*It’s worthy of note that the defendant also exercised his right to testify at trial. That, too, is a decision that is ultimately reserved for the defendant. Far more often than not, a testifying defendant is a disaster. Much as they’re certain their mad persuasive skills will win over the jury, they end up leaving no doubt as to their guilt. It’s like watching a car crash you know is coming but just can’t prevent.

8 thoughts on “Confession of Error

  1. angrychiatty

    This is such a more difficult (and interesting, but the tragic nature of the situation makes that word feel wrong) scenario compared to the stupid wide-eyed cocktail party question: “How can you defend someone when you know they are guilty?” You’re invested in the guy, you care very much about what happens to him, but he just absolutely refuses to listen. He is going down, and he has taken away what little chance you had to “save” him.

    1. SHG Post author

      This isn’t a job for the weak of will or mind, though I fear that’s more the nature of the younger lawyers entering criminal defense to serve social justice rather than their client.

  2. B. McLeod

    I did not think this was or should be a close question. I was surprised that justices dissented.

    1. SHG Post author

      Having read the dissent, I still don’t understand its purpose. I could see a concurring, but that’s as far as it goes.

        1. SHG Post author

          Even its effort to distinguish on the facts was shoddy and shallow. It just wasn’t real (snark aside), but even if it was, it changed nothing.

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