The client's veto
Telling the jury that your client is guilty is not a tactic normally embraced by defense attorneys. It can be, though, if your goal is not to have your client acquitted, but to save his life.
That was Larry English's goal, and so he conceded in his opening statement that his client, Robert McCoy, killed three people. "Conceded" is probably an understatement; English told the jury that there was "no way reasonably possible that they could reach any other conclusion than Robert McCoy was the cause of these individuals' death." So nothing would be lost to subtlety, he told them the same thing in closing argument.
As the opinion recounts in the Supreme Court's decision this past term in McCoy v. Louisiana, McCoy had other ideas. He vociferously protested, arguing in a side bar during opening statement that his lawyer was "selling him out." McCoy himself testified, and told the jury that corrupt police killed the victims, all members of the family of McCoy's estranged wife, when a drug deal went wrong, and offered an alibi that the opinion concedes was "difficult to fathom."
McCoy argued on appeal that the lawyer's concession, in the face of McCoy's protests, was a violation of his Sixth Amendment rights. The Louisiana courts didn't buy it.
The Supreme Court, by a 6-3 vote, did.
This shouldn't have been hard. There are three decision that a defendant in a criminal case gets to make: whether to plead, whether to waive a jury, and whether to testify. There had been a prior case on this subject, Florida v. Nixon, in which the lawyer had also conceded guilt in a capital case, and the Court upheld it. But Nixon didn't raise any objection to it until his appeal; the Court held that, in the absence of a contemporaneous objection, a lawyer's decision to concede guilt is a strategic decision essentially immune to appellate review.
As a technical point, English didn't force McCoy to plead guilty, but he might as well have. Your lawyer doesn't have much chance of success in arguing that you're not guilty when he's just told the jury that you are. The Court found that English's concession invaded McCoy's autonomy in the plea-making decision.
Normally, the case would go back to determine whether McCoy was prejudiced by counsel's performance, and that looks like a hard sell. Alito's dissent, for Thomas and Gorsuch, paints the evidence against McCoy in loving detail, and one finds oneself in agreement with English's conclusion that contesting guilt was Custer at the Little Bighorn, and the incredulity of McCoy's protestation of innocence could piss off the jury enough to make a death sentence more likely.
But instead it goes back for a whole new trial. The Court has developed a structural error test for certain situations, where the defendant need not show prejudice. The opinion gives several definitions of what constitutes structural error, each more difficult to understand than the previous one. What it really boils down to is that the Court will find structural error when (1) the error is of constitutional dimension, (2) it affects the integrity of the fact-finding process, and (3) the effects of the denial are hard to measure. Not allowing the defendant retained counsel of his choice and not instructing the jury on the definition of reasonable doubt are examples of structural error. (So is closing a trial. Go figure.)
Add one more. Not that the effects of the denial are hard to measure; as I said, if there was a case that had overwhelming evidence, this one was it. But I'm sorry, you can't send a man to the chamber whose trial featured his own lawyer telling the jury that he killed three people.
Despite this not being an ineffective assistance case, I think the lawyer's effectiveness played into the decision. English's apparent strategy was to argue that McCoy's mental problems meant he couldn't form the purposeful intent to commit capital murder. As the Court notes, that could be problematic: Louisiana's law, like Ohio's, forbids a "diminished capacity" defense. And, of course, whatever the strategy was, it didn't work: the jury handed down three death sentences.
At first blush, McCoy affects only capital cases; after all, it wouldn't make much sense for a lawyer to concede his client committed, say, an aggravated robbery, in hopes of persuading the jury to impose a lesser sentence, since the jury doesn't do sentencing.
But let's take this for an example: you decide that the State has an open-and-shut case that your client shot someone, but you think you have a good self-defense argument. That requires you to acknowledge that your client did in fact shoot the victim, though. What if the client doesn't want you to admit that?
It also arguably gives the client veto power over whether to ask for instructions on lesser included offenses, something that's always been regarded as a "strategic choice" by counsel, since that would necessarily require the attorney to at least suggest to the jury that the client is guilty of the lesser offense.
Then again, McCoy might not mean very much. The key factor in the decision was McCoy's expressed opposition to his attorney's plan. In the absence of that, you default to the Nixon position. It's possible that a defendant might raise the argument in post-conviction relief, but since these discussions are usually in confidence, that would usually boil down to whether the judge believes the lawyer or the defendant, and you know how that usually works out.
This does raise a separate question: what is the lawyer's duty to consult with the client about these things? The lesson from McCoy is that the lawyer should discuss with the client any plan about conceding guilt, and also about the affirmative defenses or charges on lesser included offenses as in the examples above.
At the very least, McCoy makes our job more difficult, my making our client a voting partner on strategic decisions. But that's as it should be. Yes, I know it can be aggravating to sit in a holding cell with someone in an orange jumpsuit who thinks he's the smart guy in the room, but if things go wrong, there's only one person who's going to prison, and it's not you.
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