In January, the Supreme Court will hear arguments about whether a defense counsel may concede a defendant’s guilt over the defendants’ express objection without violating the Sixth Amendment right to assistance of counsel.
In May 2008, Robert McCoy was arrested for the murders of the son, mother, and stepfather of his estranged wife. The court initially appointed a public defender to represent McCoy. However, believing his appointed counsel was not assisting him in proving his innocence, McCoy subsequently moved for their removal. McCoy eventually retained the services of new counsel, who advised McCoy to take a plea. When McCoy refused, his counsel informed him that he planned to concede McCoy’s guilt during the trial. McCoy moved to remove counsel, but the court denied the motion as untimely. Over McCoy’s objections, his counsel proceeded to concede McCoy’s guilt at multiple points during the trial, arguing instead for a reduced charge of second degree murder based on a diminished capacity affirmative defense. This strategy failed, and the jury returned a verdict of guilty of first-degree murder on all counts. They then recommended the death penalty.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” Whether assistance of counsel is effective is determined under the two-pronged Strickland test. Under Strickland, defense counsel’s strategic decisions are “virtually unchallengeable.” McCoy’s defense counsel explained that he felt he had an ethical obligation to his client to avoid the death penalty, and the only manner of doing so was to concede guilt. Indeed, the Louisiana Supreme Court denied McCoy’s appeal, holding that “[g]iven 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 Court further relied on Florida v. Nixon, which held that defense counsel’s performance is not per se deficient if counsel did not obtain express consent to concede a defendant’s guilt in a capital trial where there was overwhelming evidence of guilt. But Nixon did not address whether it is constitutionally permissible for defense counsel to act against the express objections of their client. Setting aside whether Nixon was correctly decided, the question now becomes: is there a difference between lacking affirmative consent and expressly ignoring the wishes of your client?
According to an Amicus Brief filed on behalf of McCoy, “[t]he difference between conceding guilt in the face of a client’s non-response and his explicit objection is crucial; for it is the difference between a reasonable strategic decision based on limited information and total destruction of the attorney-client relationship.” The accused in Nixon was consulted, but did not affirmatively consent to a concession of guilt, whereas here, McCoy’s defense counsel actively worked against his client’s wishes by pursuing a trial strategy that McCoy had fervently objected to. McCoy was not provided assistance in his defense, but rather, assistance in his conviction. In fact, his attorney expressly stated that he had taken the issue of guilt off of the prosecution to prove. While McCoy’s defense counsel believes that he had an ethical duty to protect his client from the death penalty, he plainly went against Rule 1.2 of the Model Rules of Professional Conduct, which states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation. . . In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”
Supreme Court precedent further supports a reversal of McCoy’s conviction. The Court explained in Faretta v. California that the Sixth Amendment provides for the assistance of counsel, but “an assistant, however expert, is still an assistant”. The Court explained in Strickland that an attorney’s role an assistant to the accused is to “advocate the defendant’s cause and. . . consult with the defendant on important decisions”. But ultimately, it is the accused who should make fundamental decisions about his defense. The right to formulate a defense is specifically granted to the accused because it is he “who suffers the consequences if the defense fails.” Despite the clear conflict between McCoy and his defense counsel, the court denied McCoy the right to represent himself as untimely, and allowed McCoy to be represented by unwanted counsel relying on unwanted trial strategy. In doing so, McCoy’s Sixth Amendment right to assistance of counsel was violated. Unless the Supreme Court reverses his conviction, it is Mr. McCoy who will face the death penalty because of the decisions his attorney made against his wishes.
 Brief for the Petitioner at 4, McCoy v. Louisiana, 2017 No. 16-8255 (U.S.), https://www.supremecourt.gov/DocketPDF/16/16-8255/19801/20171113173054270_16-8255%20ts.pdf
 Id. at 5.
 U.S. Const. amend. VI
 See Strickland v. Washington, 466 U.S. 668 (1984).
 See http://harvardcrcl.org/the-imaginary-attorney/
 Brief for the Petitioner at 7-11.
 Florida v. Nixon, 543 U.S. 175 (2004).
 Brief for The Ethics Bureau at Yale as Amicus Curiae, p. 5, McCoy v. Louisiana. http://www.scotusblog.com/wp-content/uploads/2017/09/16-8255-cert-tsac-Yale-Ethics.pdf
 Brief for the Petitioner at 2.
 Model Rules of Prof’l Conduct R. 1.2(a) (Am. Bar Ass’n 2014).
 422 U.S. 806, 820 (1975).
 Strickland, 466 U.S. at 688.
 Jones v. Barnes, 463 U.S. 745, 751 (1983).
 Faretta, 422 U.S. at 819-20, see Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10 (1979).