Supreme Court ponders if lawyer can concede client's guilt when accused claims innocence

The lawyer told the Louisiana jury that the state would prove beyond a reasonable doubt that Robert McCoy had committed a gruesome triple homicide in 2008, murdering the son, mother and stepfather of his estranged wife.

"There is no way reasonably possible that you can listen to the evidence in this case and not come to any other conclusion than Robert McCoy was the cause of these individuals' deaths," said lawyer Larry English.

But here's the twist: English was not the prosecutor in the case. He was McCoy's defense attorney. And McCoy vehemently proclaimed his innocence.

The Supreme Court last week said it would review McCoy's conviction - he was subsequently sentenced to death - to answer what sounds more like a typo than a contested question of law:

Does it violate the Constitution for a defense counsel to concede a client's guilt over the accused's express objection?

"It happens more often than you think it would," said Lawrence J. Fox, a visiting lecturer at Yale Law School who filed a brief on McCoy's behalf for the Ethics Bureau at Yale.

It occurs mostly in capital cases, Fox said, in which lawyers believe that it would be impossible to convince a jury that a client is innocent. The theory is that by creating some trust with jurors, it might be possible to get a conviction on a lesser murder charge that does not carry the death penalty.

"They think the most important thing is to save the client's life," said Fox.

But that misunderstands the lawyer's role, Fox said.

"The decision over whether to concede guilt at trial is ultimately the defendant's to make," Fox's brief to the court states. "It goes to the very heart of the right to put on a defense - a right that personally belongs to the accused."

McCoy's lawyers at the Louisiana Capital Assistance Center said English's actions - allowed by the trial judge and unanimously upheld by the Louisiana Supreme Court - did not fulfill the Sixth Amendment's promise that the accused have "assistance of counsel for his defense."

"It is inconceivable that the Framers intended that the assistance of counsel should come at the price of defense counsel being authorized to tell the jury that the accused is guilty, even over the accused's protestations of his own innocence," the center's Richard Bourke wrote in McCoy's petition to the Supreme Court.

There's little doubt that the state had a pretty compelling case against McCoy, who was looking for his wife, who had gone into protective seclusion after McCoy had allegedly threatened to kill her and himself.

In a 911 call, McCoy's mother-in-law, Christine Colston Young, could be heard screaming, "She ain't here, Robert. I don't know where she is. The detectives have her." A gunshot was then heard on the 911 tape, and the call was disconnected.

A car later found to be McCoy's was seen leaving the area, and police discovered in the abandoned vehicle the phone Young had used. Eventually, McCoy was arrested in Idaho, after hitchhiking rides from truckers. The gun used in the killings was found with him. In custody, McCoy tried to hang himself.

But he maintained his innocence, alleging a conspiracy among local police to commit the murders and frame him. His first public defender attorney was let go because of differences between the two, and then his parents paid English $5,000 to represent their son.

But English, who was not certified in capital cases, was convinced there was no way to convince a jury that McCoy was telling the truth.

English declined to be interviewed. But when lawyers were attempting to get a new trial for McCoy, he testified that, "I'm a seasoned criminal trial lawyer, had been doing this for a number of years, and I had never had a case where the evidence was so overwhelming against a client."

After English informed McCoy he was going to tell the jury McCoy was guilty, and McCoy objected, they told Judge Jeff Cox of their disagreement. But Cox said he was not going to again delay the trial and would not allow McCoy to replace English or represent himself.

When English made his opening statement to the jury, McCoy again objected.

"Judge Cox, Mr. English is simply selling me out, Judge Cox," McCoy said from the defense table.

English's strategy did not work, partly because Louisiana does not allow the kind of limited mental capacity defense that the lawyer pursued. McCoy was convicted of first-degree murder and sentenced to death.

The Louisiana Supreme Court unanimously upheld English's strategy and the trial judge's decisions.

"Admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy," the court concluded.

But McCoy's petition said the Louisiana decision is an outlier. State supreme courts across the country have considered the issue, McCoy's petition says, and all came out the opposite way.

But McCoy's petition says the case is quite different here: McCoy objected at every step of the process. And it said the Louisiana court misinterpreted another Supreme Court precedent, requiring defense lawyers to challenge the state's evidence against a client. English instead agreed with it, the petition said.

"This is not the counsel guaranteed by the Sixth Amendment but a far more sinister character unimagined in our constitution," the petition states.

McCoy v. Louisiana will be heard at the Supreme Court sometime in 2018.