McCoy v. Louisiana: New Challenges for Defenders, New Risks for the Mentally Ill

May. 23, 2018

McCoy v. Louisiana, 584 U.S. ___ (2018) (Ginsburg, J.).
Response by Robin M. Maher
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | SCOTUSblog

McCoy v. Louisiana: New Challenges for Defenders, New Risks for the Mentally Ill

In Florida v. Nixon,¹ Justice Ginsburg wrote for a unanimous Supreme Court that a defense lawyer who conceded his client’s guilt as a strategic tactic was not ineffective because the defendant had remained “unresponsive” to his lawyer’s proposal at the time of his capital trial.² Robert McCoy’s lawyer also told a capital jury in Louisiana that his client was guilty, but he did so over McCoy’s strenuous objections. McCoy’s lawyer believed that his client was mentally ill and that conceding his guilt was the best strategy to avoid a death sentence. His gambit failed when McCoy received three death sentences. On direct appeal, the Supreme Court of Louisiana held that the defense lawyer had not been ineffective because to do as McCoy had instructed—i.e., plead his innocence—would have been akin to suborning perjury.³ But last Monday, Justice Ginsburg, writing again for a six-to-three majority, said that McCoy’s objections and clear instruction distinguished him from the unresponsive defendant in Nixon. McCoy’s case, she wrote, was not about the effectiveness of counsel, but about McCoy’s Sixth Amendment-protected autonomy to make decisions concerning the objectives of his defense. Louisiana must now provide McCoy with a new trial.

In 2008, McCoy was arrested and charged with the capital murders of his estranged wife’s son, mother, and stepfather. His parents borrowed $5000 and hired criminal defense lawyer Larry English to represent him at trial. English had never tried a capital case before and was not qualified to handle one; he nevertheless agreed to represent McCoy.⁴ But McCoy’s insistence that he was innocent and was being framed by law enforcement was not what English had in mind. Just sixteen days before the start of trial he told McCoy that he intended to concede McCoy’s guilt and appeal for mercy. McCoy was understandably furious; he had steadfastly maintained his innocence, discharged public defenders who did not support his alibi defense, and expressly instructed English to argue that he was innocent. McCoy filed a motion to fire English and represent himself, but the trial court denied his request as untimely and instructed English to “make the trial decision of what you’re going to proceed with.”⁵

English took that guidance to heart. During his opening argument, and despite McCoy’s continuing objections,⁶ English told the jury that his client had killed his family members: “I’m telling you, Mr. McCoy committed these crimes.”⁷ Even after McCoy took the stand and testified that he was innocent, English again told the jury that McCoy was guilty—“[h]e killed them”—and went on to conclude during closing argument that he had relieved the State of its burden of proof.⁸ English apparently believed that he could persuade the jury that his client was “crazy” and unable to form the requisite intent for first degree capital murder.⁹ The jury, however, was unconvinced.

English’s inexperience with capital defense was manifest throughout the trial, including his decision to call just one witness in the critical sentencing phase.¹⁰ That single witness, called to testify about McCoy’s mental health, was in fact a member of the state “sanity commission” that had found McCoy to be competent before trial.¹¹ In the absence of any meaningful mental health evidence, expression of remorse, or acceptance of responsibility for a crime even his own lawyer believed he had committed, the jury sentenced McCoy to death.

On appeal, McCoy argued that his lawyer’s concession of guilt over his objections had violated his constitutional rights. The Supreme Court of Louisiana denied relief, finding English’s actions to be reasonable and therefore not ineffective under Strickland v. Washington.¹² The court also relied on Nix v. Whiteside,¹³ a case in which the defendant told his lawyer he intended to commit perjury, but the Louisiana Rules of Professional Conduct prohibited a lawyer from assisting a client who intends to engage in conduct that the lawyer knows is fraudulent or illegal.¹⁴ English could not present McCoy’s alibi defense, the Louisiana court concluded, without being placed in an “ethical conundrum.”¹⁵

The Supreme Court reversed. The Sixth Amendment, Justice Ginsburg wrote, reserves some decisions solely for the client, including whether to plead guilty, and a lawyer may not override the client’s decision. “[I]t is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.”¹⁶ Violations of this right are structural in nature, the Court held, because they “affect[] the framework within which the trial proceeds” and implicate “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”¹⁷ They are therefore not subject to harmless error analysis.

The Louisiana court’s reliance on Nix was misplaced, Justice Ginsburg noted, because English did not doubt McCoy’s sincerity and never believed that McCoy intended to commit perjury. He simply thought McCoy was guilty and had a different strategy. And although the strategic decisions of defense counsel are generally accorded deference under the Strickland ineffective-assistance-of-counsel standard, Justice Ginsburg explained that Strickland did not apply because McCoy’s autonomy, not counsel’s competence, was at issue.¹⁸

The dissent, authored by Justice Alito, disagreed with nearly every aspect of the majority opinion, including the existence of a “newly discovered fundamental right.”¹⁹ Justices Alito, Thomas, and Gorsuch accused the majority of “simplify[ing] or otherwise chang[ing] the facts of a case in order to make our work easier or to achieve a desired result.”²⁰ They sympathized with English, who they said was “in a predicament as the trial date approached.”²¹ “[W]hat was English supposed to do?” the dissenting justices asked.²² They not only found English’s decision to concede guilt over his client’s objections to be reasonable given the circumstances, but also concluded that following McCoy’s instruction would not have made a difference in the outcome of the trial.²³

The dissent then invested considerable effort emphasizing the limited reach of the decision, listing a number of reasons why “the right that the Court now discovers is likely to appear only rarely,” “like a rare plant that blooms every decade or so.”²⁴ These include the fact that the circumstances are unique to death penalty cases, where there are separate proceedings for guilt and sentencing; that “few rational defendants facing a possible death sentence are likely to insist on contesting guilt where there is no real chance of acquittal . . .”;²⁵ that serious disagreements between client and lawyer will usually resolve with substitution of new counsel; and that defendants who do not expressly protest counsel’s strategy to concede guilt will waive any argument pursuant to Nixon.²⁶

Put another way, the dissent asserts that “the right [to autonomous decision-making] is most likely to arise in cases involving irrational capital defendants.”²⁷ But because so many capital defendants are significantly impaired by mental illness, this statement only highlights the special dangers they face in the death penalty system. It also strengthens arguments that severely mentally ill defendants—because that is who is meant by the term “irrational defendants”—should be exempt from the death penalty, as the American Bar Association, the American Psychological Association, the American Psychiatric Association, the National Association for the Mentally Ill, the National Mental Health Association, and many state-based coalitions have long argued.²⁸ Criminal defendants with severe mental illness are both less culpable for their crimes and more vulnerable in the criminal justice system because of their disease. They require the same protection the Court has extended to other groups who share these same characteristics, such as the intellectually disabled²⁹—an exemption from death penalty eligibility. This is the only way to ensure that only those who are “most deserving” are chosen to receive society’s most severe criminal penalty.³⁰

The majority opinion, while undoubtedly correct in its conclusion, elides the critical and troubling fact that McCoy was mentally impaired, and that the objectives he chose for his defense were affected by (or perhaps the result of) his mental illness.³¹ It describes McCoy as “unruly,”³² but the record below shows that McCoy was not just a difficult client. McCoy made numerous suicide attempts (including immediately after his arrest), made repeated outbursts during trial, and exhibited behavior that was both paranoid and delusional—all signs that point to serious mental illness. While I cannot disagree that defendants should make certain critical decisions about their defense, I worry about capital defendants like McCoy whose mental impairments drive extremely poor decision-making.

To paraphrase the dissent, what is a good lawyer to do when her client’s mental illness determines defense objectives that will lead to his certain death? And how can sentencing a defendant to death solely because his mental illness prevents him from acting in his own best interests satisfy societal and constitutional objectives to execute only the “worst of the worst” offenders? The Court says that so long as the defendant is deemed “competent,” certain decisions, no matter how ill-informed or delusional, cannot be overridden by his lawyer. While legally correct, this holding is practically troubling. It will surely create new, daunting challenges for capital defenders whose efforts are correctly focused on saving their client’s lives, and will likely increase the risks for already-vulnerable defendants with mental illness in the death penalty system.

Robin M. Maher’s experience includes direct representation of state and federally death-sentenced prisoners; extensive training of judges and defense lawyers; legal reform efforts and systemic litigation to secure necessary resources for the defense function; expert witness testimony; and recruitment of pro bono lawyers from civil law firms. For thirteen years she was the Director of the American Bar Association Death Penalty Representation Project where she led the effort that resulted in the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. She is a frequent author and speaker on the death penalty and the importance of ensuring high quality legal representation for all those facing a possible death sentence.

1. 543 U.S. 175 (2004). The Court held that that “[w]hen counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent.” Id. at 192.
2. Id. at 192.
3. State v. McCoy, 218 So. 3d. 535 (2016).
4. This was English’s first mistake. No lawyer, no matter how well intentioned or experienced in other criminal cases, should ever represent a capital defendant if she is not specifically trained and qualified to do so. See Am. Bar Ass’n, American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 963–64 (2003) [hereinafter ABA Guidelines] (“[T]he abilities that death penalty defense counsel must possess in order to provide high quality legal representation differ from those required in any other area of law.”); see also La. Admin. Code tit. 22, § 1903 (2017) (§ 1903A, Obligations of Defense Counsel and § 1903B, Training and Experience of Defense Counsel). Moreover, English agreed to represent McCoy by himself, despite a requirement of the Rules of the Supreme Court of Louisiana and the ABA Guidelines: “In any capital case in which a defendant is found to be indigent, the court shall appoint no less than two attorneys to represent the defendant.” La. Sup. Ct. R. 31(A)(1)(a); see ABA Guidelines, supra, at 952. McCoy waived his right to second counsel because he did not wish the public defenders, with whom he had clashed, appointed to the case. See McCoy, 218 So. 3d at 547.
5. McCoy v. Louisiana, No. 16-8255, slip op. at 3 (U.S. May 14, 2018 (quoting McCoy, 2018 So. 3d at 563).
6. McCoy interrupted English’s opening statement:

   “Judge Cox, Mr. English is simply selling me out, Judge Cox. They know cops killed these people, Judge Cox, and you want me to sit here, Judge Cox, and just let this man throw away all aspects of my due process. I have told you about Mr. English, Your Honor. 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’s 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 an attorney on my case when this attorney is completely selling me out, Your Honor. * * * * I don’t want him to represent me, Your Honor.”

   Petition for Writ of Certiorari at 9, McCoy, 584 U.S. ___ (No. 16-8255).

7. Id. at 8.
8. Id. at 9.
9. See McCoy, 218 So. 3d at 565. In fact, English’s strategy to secure a second-degree murder conviction was entirely foreclosed by Louisiana law, which requires a plea of not guilty by reason of insanity. See La. Code Crim. Proc. Ann. art. 651 (1966).
10. See McCoy, 218 So. 3d at 550.
11. See id. at 619.
12. 466 U.S. 668 (1984).
13. 475 U.S. 157 (1986).
14. La. R. Prof. Conduct, 3.3(b) (La. Att’y Disciplinary Bd. 2016) (“A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”).
15. McCoy, 218 So. 3d at 565.
16. McCoy, slip op. at 2.
17. Id. at 11–12.
18. See id. at 11. Under Strickland, “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 689–90.
19. McCoy, slip op. at 2 (Alito, J., dissenting).
20. Id. at 1.
21. Id. at 2.
22. Id. at 4.
23. See id. at 8.
24. Id. at 6–7.
25. Id. at 6. Justice Alito opines that “rational defendant[s] will plead guilty in exchange for a life sentence” when there is no chance for acquittal—an assertion that relies on the dubious assumption that popularly elected prosecutors will always offer such an opportunity. See id.
26. See id. at 6–7.
27. Id. at 6.
28. At least seven states recently introduced legislation to exempt the severely mentally ill from the death penalty. See At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/node/6673; see also Recommendation to the House of Delegates Resolution 122A, Am. Bar Ass’n (2006), https://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/2006_am_122a.authcheckdam.pdf; Report of the Task Force on Mental Disability and the Death Penalty, Am. Psychol. Ass’n (2005), https://www.apa.org/pubs/info/reports/mental-disability-and-death-penalty.pdf.
29. See Atkins v. Virginia, 536 U.S. 304 (2002).
30. See Furman v. Georgia, 408 U.S. 238 (1972).
31. The majority opinion only recites the fact that McCoy was assessed by a “court-appointed sanity commission” and found to be competent, meaning only that McCoy had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” McCoy, slip op. at 1, 8 (majority opinion) (second quotation quoting Godinez v. Moran, 509 U.S. 389 (1993)).
32. Id. at 13.

Recommended Citation
Robin M. Maher, Response, McCoy v. Louisiana: New Challenges for Defenders, New Risks for the Mentally Ill, Geo. Wash. L. Rev. On the Docket (May 23, 2018), https://www.gwlr.org/mccoy-v-louisiana-new-challenges.