Courthouse Steps: McCoy v. Louisiana

Criminal Law and Procedure Practice Group Teleforum

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Robert McCoy was arrested for three murders in 2008. After being found indigent, the court appointed him a public defender. In 2009, McCoy made a motion to remove his public defender because he was not convinced that the attorney was arguing for his innocence. After the court granted his motion, McCoy represented himself until he found a new attorney to present his case. The new counsel advised McCoy to take a plea deal. Throughout his representation by both the public defender, and the new counsel, and when he was representing himself, he had consistently maintained that he was innocent of the murders.

McCoy subsequently refused to take a plea deal, and his counsel overrode his veto and notified him that they would be conceding his guilt in arguing for verdicts of second degree murder rather than the first-degree murders as originally charged. McCoy attempted to have his counsel discharged, but the court denied his motion. The jury found him guilty on three first degree murder charges, and recommended the death penalty. McCoy appealed, and the Louisiana Supreme Court denied, affirming the convictions of the lower court. The court reasoned the concession of guilt was a strategic decision meant for the betterment of the client, and that therefore the concession was not akin to abdicating a defense.

The question before the court is, when a defense counsel chooses to concede a criminal defendant’s guilt over the that defendant’s express objections, does that violate the defendant’s sixth amendment right to assistance of counsel?

Jay Schweikert attended the oral argument and joins us to discuss the case.


Jay Schweikert, Policy Analyst, Project on Criminal Justice, Cato Institute.


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Event Transcript

Speaker 1:                           Welcome to the Federal Society's Practice Group Podcast. The following podcast, hosted by the Federal Society's Criminal Law and Procedure Practice Group, was recorded on Wednesday, January 17th, 2018, during a live courthouse steps teleform conference call, held exclusively for Federal Society members.

Wesley Hodges:                Welcome to the Federal Society's Teleform Conference Call. This afternoon's topic is a courthouse steps discussion on McCoy v. Louisiana. My name is Wesley Hodges and I'm the Associate Director of Practice Groups at the Federal Society. As always, please note that all expressions of opinion are those of the expert on today's call. Today we are fortunate to have with us Jay Schweikert, who is a Policy Analyst on the Projects on Criminal Justice at the CATO Institute.

                                                Jay will offer his remarks and then we will move to an audience Q&A. Thank you for speaking with us today, Jay. The floor is yours.

Jay Schweikert:                 Thanks very much. So um, this case involved what I think is a pretty simple, but important question, and that's whether it's constitutional for a defense counsel to admit a defendant's guilt to the jury over the defendant's express objection. In other words, the defendant says "I'm not guilty," and his lawyer says, "Yes, you are," in front of the jury.

                                                The defendant here, uh, Robert McCoy, was charged with the murders of uh, three of his family members. Uh, he maintained, throughout the entire process, that he was completely innocent of the crime, that he was actually out of state at the time of the murders. Uh, he was originally appointed some public defenders, but he dismissed them because of conflicts in the case. Uh, he wanted to pursue an alibi defense that uh, in fact, uh, as I said, he was out of the state and that the murders were committed by corrupt police officers.

                                                Um, he was uh, originally qualified by the court to represent himself, uh, but then his family retained another attorney, a Larry English, to represent him. Um, English uh, like his public defenders, didn't want to go along with supporting his subpoenas and uh, 16 days before trial, English told McCoy for the first time that he intended to tell the jury that McCoy uh, was guilty and had killed these victims.

                                                Um, English' reason for this is that this was a capital case, uh, McCoy was charged with the death penalty and English thought that there was so much evidence against him that, the- the only reasonable strategy was to admit guilt and hope for leniency at the sentencing stage. Which is sometimes something that, you know, lawyers do in capital cases.

                                                So McCoy adamantly opposed this, instructed English not to tell the jury that he was guilty, uh, asked the judge not to let, uh, English do this, but the judge directed uh, his attorney to go ahead and at trial, uh, he told the jury that his client was guilty. Um, and McCoy objected. McCoy even took the stand himself, uh, to testify as his innocence and he was cross-examined by his own attorney, who was uh, attempting to illustrate that McCoy was in fact responsible for these murders.

                                                Um, as you might expect, the jury returned a uh, unanimous verdict of guilty for all three murders and sentenced McCoy to death. Uh, the Louisiana Supreme Court upheld this conviction and uh, and this is an appeal from the Louisiana Supreme Court and so the question is whether it was constitutional for McCoy's attorney to admit guilt over his objection.

                                                Um, McCoy's basic position here is that the sixth amendment guarantees the right to a personal defense uh, that the defendant is the master of and so the defendant gets to decide whether to admit guilt before a jury. Uh, and if there's any question of reasonableness or tactics by the lawyer, but what the defendant's goals themselves are. Uh, and then the State's position is that once a defendant has accepted the assistance of counsel, uh, it's the lawyer's job to make strategic trial decisions and whether to use this kind of concession strategy, in the State's view, is simply a strategic question that the lawyer, uh, has discretion over.

                                                Um, I want to sketch out a little bit of the kind of background legal framework that's sort of cabining what the scope of the arguments are here, just so everyone sort of understands what's at stake. First, uh, without a doubt defendants have the right to represent themselves at trial. That- that's something that the Supreme Court said in Faretta v California in 1975. Um, Mr. McCoy here at one point, uh, was planning to represent himself and was, and was qualified by the court to do so.

                                                Um, but ultimately he was unable to uh, uh, in the couple days before trial. Um, but so the defendants have that right. Um, if defendants accept the assistance of counsel, it's definitely true that the lawyers get to make most of the tactical trial decisions. Uh, and they don't their defendant's, the- their client's consent on those. So tho- those are things like which witnesses to call, what questions to ask, what arguments to make, but we know that the defendant has the right to make certain, fundamental decisions.

                                                Um, the Supreme Court has given as examples of these whether to enter a guilty plea, whether to waive the right to a jury trial, uh, whether to testify at trial and what to say, and whether to take an appeal. Um, th- even, even if a defendant uh, even the defendant's lawyer thinks there's a better strategy, the defendant gets to make those decisions. And so the question, in some sense, is whether uh, admitting guilt before a jury is within this group of fundamental decisions that are solely for the defen- or that are ultimately for the defendant.

                                                And then finally, um, there's a case, uh, from 2004 called Florida v Nixon, which is somewhat similar to this case. Um, it involved uh, a defendant who was uh, being charged with murder as a capital case. Uh, like here, the defen- the lawyer there thought that the defendant needed to admit guilt at trial, uh, to, to get leniency at sentencing. Uh, but there the defendant neither objected nor consented. He was basically silent and mostly unresponsive. Uh, and so after trying to consult with his, with his client, the defendant ultimately followed the strategy at trial.

                                                And the Supreme Court in Nixon said that that was okay. Uh, that after you've uh, if you've consulted with your client, that isn't the sort of decision that requires express consent, uh, but of course, th- the difference there is that he- is that the client in Nixon didn't object, whereas here, uh, McCoy adamantly objected throughout every stage of the trial. And so the question is whether that express objection uh, makes the difference in this case.

                                                So, so tho- those are the basic positions sort of that's laid out by the parties. Um, uh, the CATO Institute filed an amicus brief in this case. Uh, it- wh- where we tried to emphasis really th- thi- the question is defendant autonomy. And that uh, defendant autonomy is a principle that is reflected in, in a number of areas of uh, constitutional law uh, self-representation cases, the defendant's right to counsel of their own choice. Uh, the defendant's right to make certain fundamental decisions.

                                                Um, and, and we tried to emphasis the criminal defense is deeply personal and especially when you get to something like a capital sentence, um, you know, how to weight the risk of a death penalty, versus life in prison, is a terribly difficult question that involves subjective beliefs and values that are going to vary from person to person. You know, the answer there may turn on one's philosophical or religious beliefs about death and redemption. Uh, your relationship with friends and family, the value you place on your own integrity. Um, so th- so our take is that this, this aren't strategic questions. These aren't questions of how to get a client what he or she wants, but it's what a client's objectives are in the first place.

                                                Um, and additionally, we, we were very interested in this case because of it's relationship to the jury trial generally. Uh, as many of you may know, um, the jury trial, al- though, despite the fact that it forms really the cornerstone of our criminal justice and it's sorta the basis for all of our constitutional rights uh, in the criminal sphere, it's something that we have nearly eliminated in practice.

                                                Um, over, uh, 95% of all cases, now, at the federal and state level are resolved through plea-bargaining. Uh, not through jury trials. Uh, and if you look at the limited resources that most, uh, public defenders and other appointed counsel have, practically speaking, they don't have much ability to subject uh, prosecutions to meaningful testing. Uh, about the most they can do in the typical case is negotiate a plea. And so the defendant's advocate, who's meant to be their trial advocate, who's meant to test the prosecution's case and adversarial proceedings at trial in front of a jury of one's peers, is basically been reduced to a plea negotiator.

                                                Uh, and that's a difficult problem to solve. There aren't any easy answer there, but our take is that the least we can do is not make it, is not discourage trials even more than we already have. You know, trials are, contain risk all around, but the defendant should be assured that if they go to trial, they will have an advocate that is zealously committed to defending their innocence and putting the state to it's burden to prove guilt beyond a reasonable doubt.

                                                Uh, Mr. McCoy didn't get that here, and we think that that's a core constitutional entitlement. Um, also note that there are some other interesting, uh, amicus briefs filed in this case by a number of groups of uh, of professional organizations of lawyers, including the American Bar Association. Um, as well as a very interesting brief by the Criminal Bar Association of England and Wales. Uh, both of- all, uh, both supporting McCoy in this case and the uh, the England and Wales brief uh, was focused on showing um, how at the time of the founding, it would have been, thi- this kind of practice would have been ridiculous to think that an attorney could admit guilt over a client's objection, that in that era, attorneys played very little role in a criminal procedure. That it was really the job of the defendant to argue their own case. And that today, in other commonwealth countries, uh, this practice wouldn't be, wouldn't be allowed.

                                                Um, so oral argument in this case was this morning. Um, an- so, and I attended that and um, I think that there's, there's some pretty aggressive questioning all around. I think the justice has seemed very interested in this case and wanted to get into the details. Um, so the, the questions for Mr. McCoy's counsel, uh, focused a lot on line drawing issues.

                                                Um, so this, this, this case is really the, the core of the proposed right, which is a attorney, a defense counsel who, over his client's express objection, straight up tells the jury, "My client is guilty of murder, you must convict him." But there are sort of more complicated questions at the edges about whether that same rule should apply if say, uh, an attorney admits only some elements of the crime and not all of them. In other words, he or she is not admitting complete guilt, um, or exactly what counts as an admission.

                                                You know, if an attorney says something like, "Well, you know, there may be a lot of evidence that they present, but y- yo- you know I wanna focus to you on, on this element, uh, which I don't think the government or the state can prove." And so there are a lot of questions um, from the Chief Justice and from the lead [inaudible 00:10:51], but also from Justices Sotomayor and Kagan about uh, these line drawing questions an- and in particular on, on the point about elements.

                                                Um, Seth Waxman, who was representing Mr. McCoy, stated that he- you know, that his position is that uh, an attorney can't admit any element over the defendant's objection. But, he said that that's not necessary to decide this case, because here we had a complete admission of guilt. So if the court wanted to write a narrower opinion, that would certainly be permissible.

                                                Um, Justice [Breyer 00:11:22] in particular, seemed concerned about how to write the opinion and, and whether there would be uh, in his, in his words "Chaos in the lower courts." Um, if uh, they weren't clear enough about what the rule was.

                                                Um, and then for the State's counsel, um, Justices Sotomayor, um, and uh, Kagan pushed, pushed on, pushed on her pretty hard, um, a- about you know, whether there's ever going to be, you know, whe- whether it, it's ever going to violate the sixth amendment to admit, to admit guilt over your client's objection. Um, Justice Kagan, I thought, really uh, sees the point that I think is critical to this case, which is that um, the- thi- this isn't, the ineffective assistance of counsel is an, an awkward way to look at this. The, the state's position is, you know, this sort of question should be evaluated as whether there was ineffective assistance of counsel or not, there shouldn't be any sort of special rule about admitting guilt.

                                                And Justice Kagan said that this is an awkward fit because McCoy's attorney probably did nothing wrong, if the goal was to avoid the death penalty. Uh, you know, I mean, he, he, he presented a strong mitigation case based on Mr. McCoy's mental state. Um, if that had been what McCoy wanted, it certainly would have been effective assistance. But the question is that that, this wasn't Mr. McCoy's objective, his goal wasn't to avoid the death penalty at all costs, it was to vindicate his innocence uh, and, and to avoid telling a jury that he killed his family.

                                                Um, and so, and so that question of how to achieve a client's goal versus what a client's goals are was very important to her, uh, the Chief Justice asked a few questions about that as well. So he c- he clearly seemed to grasp that. Um, uh, Justice, uh Gorsuch, uh, asked a number of questions about whether this should be considered structural error, meaning whether um, there should be automatic reversal. As you may know, if, in normal ineffective assistance cases, if you say, "Well, you know, my attorney did a terrible job, so I should get a new trial." There is an error analysis.

                                                Um, if the, if the attorney is supposed error wouldn't have made a difference, like if the outcome would've been the same, courts won't grant a new trial, even if they find that the attorney's performance was deficient. But here, uh, Mr. McCoy position is that this was a flat out denial of his right to a- a personal defense. Uh, that, you know, whether or not Mr. McCoy did a good job making his argument, it simply wasn't something he was permitted to do, and so it should be considered structural error, which means automatic reversal, new trial.

                                                Uh, Justice Gorsuch seemed, seemed sympathetic to that and was pressing the State's counsel on it. Um, so, you know, overall I think there was, uh, you know, it's hard to say exactly what would happen. I, my sense is that they seemed pretty sympathetic to uh, sort of the core part of McCoy's arguments. Um, that, you know, in this clear case, that an attorney shouldn't be allowed to do this, but that they had some doubts about where to draw the line. So um, I, my guess would be that they're going to find in favor of McCoy. It may not get all the Justices but I'm pretty optimistic about that. Um, but I think it's a much closer call about how they would write opinion and how narrow or broad it would be.

                                                Um, so that's, you know, my basic overview of the case and what happened at argument and I'm happen to take any questions you might have.

Wesley Hodges:                Wonderful, thank you Jay. Let's move to audience questions. Looks like we do have a couple questions coming into the queue, so let's go ahead and move to our first audience question.

Mitchell K.:                         Hi, Mitchell [Ketter 00:14:54] from Los Angeles. It seems that the real complaint, his real issue, isn't what was the defense at trial, but that the court denied his motion to substitute indifference counsel. I mean, a client has the right to what- the court, as [inaudible 00:15:11] v [inaudible 00:15:11] says, a meaningful relationship that means he can, he can insist upon a certain defense and that error, the error, you know, not to, to grant that substitution request would be reversible um, without showing of prejudice.

                                                So why wasn't that the, the asserted uh, complaint by the defendant?

Jay Schweikert:                 So I think that's a good question. Uh, and, and, and I will also say, that was the sort of concern that um, Justice Alito uh, mentioned that a couple times in comments. Basically, you know, why did this come up in the first place, as in, shouldn't this be avoidable through, you know, continuances or finding of new counsel? I will also note that um, in addition to denying him uh, the chance to get new counsel, the court also denied him the chance to represent himself.

                                                Uh, at this pre-trial hearing, a couple days before trial, Mr. McCoy said, "Well, okay, in that case I want to go back to self representation." Uh, and the court remember, had previously said that he was um, competent to represent himself. But the court denied that as well. Um, if you're just asking me, I think that looking at the record, it looks to me like his right to self-representation was also denied. Uh, I think the reason that that wasn't the issue that was raised on appeal is that those kinds of decisions are, are typically reviewed for abusive discretion.

                                                Uh, th- th- th- the district court, or the trial judges have a lot more discretion to manage the sort of timing uh, and, and just, and procedure in their courtroom and, and, requests, like for a continuance or for new council are judged on that, whereas this is a cleaner legal question. But I also think it's important to note that the Constitution doesn't make you, doesn't force you to choose between the assistance of counsel and the presumption of innocence.

                                                Uh, the State's, one of the State's arguments in this case is that "Hey, you know, if you want to be in charge of your own defense, that's fine, you just have to represent yourself." Um, but once you, you know, give up, once you choose [inaudible 00:17:05] of counsel, basically they're in charge. And uh, McCoy's response, which I think is correct, is "No, you're not, you're not forced to choose between those rights." Now, here, Mr. McCoy did want to represent himself, but a lot of defendants won't want that. They want the assistance of counsel, and in fact, they have a constitutional right to the assistance of counsel, uh, you know, to, to make all of those, you know, trial tactical calls that really only lawyers are qualified to make.

                                                So he wanted an attorney, he just wanted an attorney that was going to defend his innocence. And so I think his position, and I, and I, which I think is correct, is that the Constitution guarantees you both of those. You, you get the assistance of counsel, but you also have the right to decide on the purposes of your defense and if what you want your defense to be is defending your innocence, than your attorney can't concede guilt over your objection.

                                                Now, to be clear, what um, what Mr. Waxman in oral argument, uh, you know, clarified is that you don't necessarily have the right to tell your attorney what arguments to affirmatively make. Right? So here, McCoy had this alibi defense, um, and, and uh, Mr. Waxman, you know, conceded on appeal that McCoy would not have the right to demand of his attorney, "Make these particular arguments, call these witnesses." If you wanted to get into that level of detail, you would need to represent yourself.

                                                But what he does have the right to say is, "Do not tell the jury that I am guilty."

Wesley Hodges:                Thank you, caller, for your question. Looks like we do have one more question in the queue. For anyone that would like to as a question with our expert, please enter the star key, then the pound key.

Jordan Lawrence:             Hi, this is Jordan Lawrence with Alliance Defending Freedom and I was able to attend the oral arguments uh, today. I have no background in criminal law, but I was just interested in the oral argument. And uh, Mr. Schweikert, I, I'm uh, what was your reaction or response to the argument by the Louisiana solicitor general that uh, that if this wha- if I'm, I think I'm stating, in response to Justice Kagan's remark that you said about a, a defendant could choose to vindicate his name and his innocence and say "I'd rather risk the death penalty than you know, just do anything to avoid the death penalty," and uh, the solicitor general, her response was something like, "Uh, well, you're assuming that Mr. McCoy was making rational decisions, and there was like a rational di- uh, discussion going on."

                                                And that she was essentially saying that he was delusional and I was somewhat jarred when, you know, he wanted, uh, uh, she said that he wanted to call, um, then Senator Vitter to the stand for some reason. So if it's a nutty thing, um, and I'm not necessarily agreeing with the State, but I think they might have more argument that the guy really wasn't competent to make these kind of decisions and what was your response to that?

Jay Schweikert:                 Sure. Uh, that's a good question. Um, so, so th- this didn't come up as much at oral argument, but in, in the State's brief they certainly do call into question Mr. McCoy's mental competence. I think it's important to note that trial court here, on multiple occasions, uh, held competency hearings, held that McCoy was competent to stand trial and even held that he was competent to represent himself, which is a, it's just a higher standard.

                                                So I think that's the record that we have in this case and that has to be what the court assumes when it's issuing a constitutional rule. Uh, if they grant Mr. McCoy a new trial, certainly, his new attorney could you know, reopen the competency question, and if he's not competent to stand trial, then that's certainly an issue that needs to be addressed. But I think the record we have here, we have to assume competence for the purpose of deciding this issue.

                                                I also think that uh, you know, th- the suggestion about whether he was being rational or not, I- I think that, you know, he had a, he had a strong difference of opinion with his, with his lawyer. I think any lawyer will tell you that there are a lot of clients who are difficult clients, um, and it's not because they're crazy or irrational, it's because the law is some sen- in some ways kind of an arcane profession and there are certain rules that don't make a lot of sense to, to layman, and you know, that's just part of being a lawyer.

                                                Um, and you know, you as the professional, have to take your client's goals and try to achieve them the best that you can, and if they have goals that make your job more difficult, you know, too bad. Um, and I- I think that, you know, whether or not, again, to be clear, uh, McCoy was not, McCoy's counsel was not arguing on appeal, that he had the right to demand that his lawyer call these witnesses, right? He- He's not going to get the constitutional right to demand that someone go through this whole, uh, alibi defense, which may or may not have any basis.

                                                All he's saying that he, all he's asking for, as a constitutional rule here, is that his attorney can't tell the jury he's guilty. There are, there are but and there are plenty of ways, you know, an attorney can always subject the government's case to meaningful testing and put the State to it's burden. You know, point out holes under cross examination, you can always do that. Even if you're not putting on some particular alibi defense. And as a constitutional requirement, that's all that McCoy's asking for here on appeal.

                                                Um, I think that, you know, it, if given a new trial, there, there is definitely open question about you know, whether they're going to reopen competency hearings or whether you know, I- I- I think, you know, certainly there is reason to be skeptical of these particular alibi defense, but I also think it's somewhat unfair to evaluate the merits of that in a case where there was no testing of the prosecution's evidence.

                                                You know, if you read the State's brief, it looks like they have a ton of evidence against Mr. McCoy, but that evidence was never tested in an adversarial process and it's only testing in an adversarial process that we think justifies you know, the uh, position of, of, of guilt. Um, and so I think that, you know, for this appeal, you kind of have to hold those questions aside and say, you know, you have to go through a trial where you have an advocate defending you before you can weigh the state of the evidence or weigh whether his defense was reasonable.

                                                And I think that, actually I think that Justice Sotomayor, uh, you know responded to that argument with, I think appropriate cynicism, which kind of asked, like, "So you're saying, you know, this rule depends on whether your client's rational or not?" Because I think, you know, mental competency aside, there are plenty of lawyers who have been frustrated by what they perceive to be clients with irrational preferences, but that's, that's the typical case. That's not uh, unusual.

Wesley Hodges:                Thank you for your question, caller. Looks like we have one left in the queue. If you'd like to ask a question, please enter the star key, then the pound key on your telephone.

Russell:                                 Good afternoon, um, this is Russell [Kirchie 00:23:58] from Punta Gorda, Florida. Um, thank you, Mr. Schweikert for doing a presentation on criminal law, it's uh, unusual. Um, my, my question is this: It's sounds to me like the argument made by counsel is tantamount to a guilty plea. Um, and I know that you can't make a guilty plea on part of the client, I, I never, it never would've occurred to me, to, to concede someone's guilt, without the client's permission. Can you talk about how closely the case law falls between those two issues and you know, are they same or are they close to being the same? Or is this new territory for the Supreme Court?

Jay Schweikert:                 Yeah, no, I think that's uh, that's a very good question. Um, so we definitely know that an attorney can never plead guilty, can never enter a guilty plea without the client's express consent. Um, so it's not enough, you know, even if your client says nothing, you can't do that unless your client affirma- affirmatively says "Yes, that's what I want to do."

                                                So, the question in uh, Florida v Nixon, which was the previous uh, case where the client neither objected nor consented. One question there was whether admitting guilt was like a guilty plea in this respect. Right, whether you needed express consent. And the court there said "No, you don't." So it's different in that regard. Because if you enter a guilty plea, you know, you're not only saying "I'm guilty," but that itself waives the rest of your trial rights and uh, you know, that is itself a judgment, right?

                                                Whereas, admitting guilt at trial, the state is still, you know, you still have your other trial rights, the state is still required to prove, uh, prove guilt beyond a reasonable doubt. So their not exactly the same, in terms of whether you need express consent or not, but I think functionally, in this case, they are in the sense that it goes to a fundamental question for the defendant. Because you're ultimately, you know, you know, it's not just, it's not just a tactical trial question. You know, you are standing up in public, you know, in a public trial before a jury of your peers saying, in this case, you know, "I'm guilty of murdering my family."

                                                You know, that's, that's in a program that will stick with you for the rest of your life. That's not something confined to the trial itself. So I think, a-a-a, I think it's the same, it's the same for the purposes of asking who gets to decide. Uh, and, and actually, so I will say, at oral argument, um, Justice Kennedy, uh, was relatively quiet throughout most of the argument, he didn't, he didn't say a whole lot or ask a lot of questions, but one question he did ask of uh, Louisiana's uh, counsel was, and it was kind of sarcastic, he sort of said, "So, can I put in my notes that your position is that is a defendant pleads not guilty, his lawyer can nevertheless plead guilty, if it'll spare his life from a death penalty?"

                                                And counsel said, you know, "No, that's different 'cause a guilty plea is different," but you know, I- I think that that showed that he is thinking of these as similar. And I think that they are similar, again, for this, this who decides question. I think it's probably o- I mean, I think, I don't think there's anything wrong with the Nixon decision, I think that if you're going to trial and you've consulted with your client and your client, you know, won't give you an answer one way or another, you know, at this point, you, you have to do what you think is best. You have to make a judgment call um, by necessity.

                                                Whereas, you never have to enter a guilty plea. You always have the backdrop of the constitutional process of a trial. Um, but I think it makes a world of difference, whereas here, you have the client clearly objecting to that decision.

Wesley Hodges:                Thank you for your question. Looks like there are no questions currently in the queue. I did want to ask you, Jay, you've mentioned your impression of Justice Kennedy. Uh, were there any other strong impressions you received from the oral argument today of individual justices?

Jay Schweikert:                 Sure, I think um, you know, like I mentioned, I think Justice Kagan really uh, very clearly grasped and articulated the sort of uh, ends versus means point. Um, so I was very appreciative of that. Um, I- I- I was, I was very glad to see Justice Gorsuch uh, sort of taking a, a strong stand on the p- on the structural error point. Um, I think if- if- if- if some of you may know, Justice Scalia was uh, one of the most ardent defenders of um, criminal uh, trial rights, uh. Sixth amendment rights, uh, the right to cross examine witnesses against you, um, was a sort of area of law that he really sort of led uh, a change in the law on.

                                                Uh, I think a lot of people found that surprising about his juror's prudence, because they sort of think, "Oh, well he's conservative and conservatives are skeptical of criminal defendants," but I think, you know, as a, as a textualist and an originalist, if you look at the Bill of Rights, it says some pretty clear things about the rights that criminal defendants have and I think he took those seriously because of his views on how to interpret law.

                                                And uh, I am hopeful that Justice Gorsuch will follow in those same footsteps, um, about he, you know, he is purported to be a textualist and an originalist and I think that uh, you know, that requires taking seriously, uh, these trial rights that we have and I think his um, his questions about why this should be considered structural error suggested to me that he was um, kind of thinking about it seriously in that same way, so I was pleased to see that.

                                                I think Justice Alita was probably the most, um, skeptical of McCoy's position, based on his questions. One of the points that um, Mr. Waxman was making uh, a number of times was that, you know, in the, in the founding era, uh, we, we, it would be unthinkable for an attorney to do this, because attorneys had, as I said, before, sort of a limited role uh, at trials and it was really defendants themselves who plead their cases, and Justice Alita sort of responded, "Well, okay, but in that era, we didn't have the right to appointed counsel, so of course they weren't going to be involved because, you know, most people didn't have attorneys in the first place, so isn't it all ..."

                                                Basically, the sort of implication being, isn't this all different now that we have the right to appointed counsel? Um, so you know I think he was a little bit more skeptical. He had, he was pressing pretty hard on um, sort of the, some of the line drawing issues. Uh, Justice Thomas, as usual was quiet and did not ask any questions.

                                                Um, so you know, overall, um, yeah, I mean, I think that's kind of my impression for the individual, individual justices. I think. Uh, you know, certain, probably Sotomayor, Ginsburg and Kagan were, seemed to be the most solidly on Mr. McCoy's side and were pressing the hardest on State's counsel. Uh, but I could see, I could certainly see a pretty, pretty significant majority in favor of Mr. McCoy.

Wesley Hodges:                Looks like now we have two questions in the queue. Let's move to our next caller.

Speaker 7:                           Hello, it's [inaudible 00:30:45] Nix, with an interest in the Boston Marathon Case. Shouldn't have it'd have been part of the argument today that if the defense attorney didn't bother with cross-examination, then the jury didn't hear what they needed to hear? And, and in fact, could they make a proper decision, th- this was a jury trial, correct?

Jay Schweikert:                 Yes, that's right.

Speaker 7:                           So they didn't, you know, if, if the prosecution gives a certain piece of evidence that is flimsy, and why would the defense attorney bother to question if his [inaudible 00:31:18] already guilt has been admitted, then I have to say the jury can not weigh up the facts properly.

Jay Schweikert:                 I think that's exactly right. Um, I- I think that's, you know, why this sci- there's such a significant problem. You know, we have a criminal justice system that, you know, for hundreds of years, has been premised citizen participation in the criminal justice process, where you have the adversarial presentation of evidence, before a jury, uh, and you know, we think that, you know, that's the process you have to go through to justify the serious, serious penalty of uh, incarceration and, and criminal penalties.

                                                Um, so, you know, and, and, that's I think, that goes to why the, we at CATO Institute were so interested in this case. Not just because of this one sort of doctrinal question about admitting guilt, but because it goes to really wh- what we think the jury trial right is there for.

Speaker 7:                           Mmm.

Jay Schweikert:                 You know most defendants are sort of, don't go to a trial, they're sort of ushered through this plea bargaining process where prosecutors can exert enormous pressure on them, and as I mentioned, you know, they're, they're attorneys often don't have the resources to do anything other than negotiate a plea, and so for most defendants, they're guilt is never proven, it's just admitted, because the threat of a harsher penalty at trial is so great.

                                                And so here, in one of the rare cases where someone actually does go to trial, uh, you know, they were essentially still denied that right. They were still denied the chance to test the State's evidence and put the State to burden. The, the attorney in this case, even I mean, he went so far as to say to the jury, "I am relieving the State of it's burden. I took that burden off of you." Um, and so, so I- I agree, I think it's a serious problem, and it really means that this jury trial couldn't function as a jury trial in the way that it's intended to.

                                                And, and I think it also sort of, you know, it undermines public confidence in the criminal justice system. I think for jurors to see, you know the defendant's own advocate sort of helping the government convict him, you sort of can't help but, you know, I think for any sort of reasonable person, that calls into question the fundamental fairness of the proceedings, because it basically means this guy had an admission of guilt forced upon him.

                                                You know, we, we typically, you know, it- th- that's why it also implicates his fifth amendment right against self-incrimination. You know, we know that defendants can't be forced to testify against themselves. Yet, if you have a situation like this where your own attorney is calling you out, you basically have no choice but to take the stand if you want to vindicate your innocence.

                                                Um, so yeah, I mean, I- I agree that you know, a- a jury trial demands adversarial testing of evidence where the defendant has an advocate zealously committed to their cause. Uh, I think without that, you don't have criminal justice and that's not what McCoy got in this case.

Gary:                                     Sure, yeah, this is Gary [inaudible 00:34:10] in New Hampshire. So I'm going to ask you to speculate a little bit here again, I think you mentioned Kennedy, um, um, for conflated the concept of the guilty plea of formal process. Um, and a lawyer, um, for, for a client actually telling a jury that his client is guilty. Um, so, can you maybe tell me if there's any way that Kennedy could merge the two or was he was mistaken in that or am I missing something?

Jay Schweikert:                 So, uh, I wouldn't necessarily say he was conflating those two, I mean, I thi-, I mean, I think he was sort of suggesting that the government's position was tantamount to uh, entering the guilty plea. You know, I think if you, if you wanted, if you were going to treat them identically, right, then you would have to overrule the Nixon decision, because Nixon said "You don't need a client's express consent to uh, admit guilt." Um, whereas we know that you have to get your client's express consent to plead guilty.

                                                So if you wanted to, you know, treat those the same, it would require overturning Nixon, which, which Kennedy actually joined, I mean, he was part of that decision. It was an 8-0 unanimous decision. So I don't see the court reversing that. I think that would be extremely unlikely. Uh, and frankly, I don't even, I'm not even sure Kennedy was suggesting that we should reverse it, I think, you know, just to speculate, you know, what I thought he was getting at was that, you know, it, it, it raises those same kinds of concerns.

                                                Um, you know, the state, the state was leaning very heavily here on the idea that, "Well, this is a capital case, this is, you know, there's a risk to his life, and so of course, the defe- the lawyer had to do anything possible to avoid the death penalty." And you know, I think one of those responses, like I mentioned from Justice Kagan and, and the Chief Justice was, who says that's the most important concern? His most important concern was uh, vindicating his innocence, so who is his lawyer to say that that's wrong?

                                                But then I think, you know, I- I- just, you know, I think maybe what Justice Kennedy was getting at with his question was we ob- we already, we know that that's not enough to get around a guilty plea, right? Just because, you know, your client's ... Even if, you know, you have the chance to, you know, enter a plea for a life sentence and otherwise your client's almost certainly going to get the death penalty at trial, you still can't enter a plea on their behalf. They have to decide that question.

                                                Um, so I think that it would be perfectly reasonable for the court to say that they ... That those questions are similar, again, in the who decides point. And that if you have, uh, a defendant here like McCoy, expressly objecting to any concession, then you can't overrule that.

                                                And I think you can say that and, and maintain the rule from Nixon that where a client, you know, basically doesn't say one way or the other, it's not inherently problematic. Um, so you know, my guess would be that Kennedy ends up, you know, ruling in favor of McCoy, but I would be very surprised if he called into question the Nixon decision.

Gary:                                     That's, I- I- I- I'm totally tracking with that. I think [inaudible 00:37:29] the similarity would the effect, I guess, on the jury, right? So either way, um, there's still similarity there. It's a matter of whether it's a formal process piece where you [inaudible 00:37:41] or um, admission.

Jay Schweikert:                 Right.

Gary:                                     I mean, you know, can a, can a client, for example, change his plea? Yes, during, during the trial and, and you know, if there's a plea bargain during the trial. Um, and, and, whether it's a full admission or partial admission, I guess, right? So [crosstalk 00:37:59]-

Jay Schweikert:                 Yeah, and I think that's gets into some of the line drawing questions that the court was asking about. Um, and that does- you know, if you have a, a, a client who's, you know, doesn't raise this until after it first comes up in trial, or changes their mind, that complicates things a little bit, um ... You know, I think th- the- this, this case presents the cleanest version of the question, where you have a defendant who was consistently vociferously objecting to this at every stage.

                                                So you know, none of those line drawing questions are at issue here. Um, but yo- yeah, I think, you know, if you have a def- if you have an attorney saying "My client is guilty," you're never going to have a jury that doesn't find them guilty. Right? I mean, what jury would fail to convict when your own advocate confesses your guilt.

                                                So, you know, even thought it's, there's technically still a trial and the government still has to present a case, in practice, you know, it amounts to accepting a guilty plea, I think.

Gary:                                     As the last caller [inaudible 00:38:59] obviously [inaudible 00:39:02] the lawyer's probably going to do a cross-examination, he's [inaudible 00:39:07] a lot of things that these um, [inaudible 00:39:09] the guilty track anyways. It's crazy, but anyway, thanks for the call.

Jay Schweikert:                 Yeah, and I will say, of- jus- just one more point on the cross-examination question, you know, here, not only did uh, Mr. English fail to uh, sufficiently test the government's affirmative case, he, he cross-examined McCoy himself. And he actually, that cross-examination brought in evidence against Mr. McCoy, that the government wasn't able to get in. Uh, brought in evidence about um, Mr. McCoy's uh, attempted, uh, suicide attempts, it brought in evidence about uh, uh, ph- phone records of a phone that was allegedly in Mr. McCoy's possession that night.

                                                So, you know, by, by pursuing his concession strategy, uh, his lawyer, you know, actually brought in more evidence against his client than the government itself could.

Gary:                                     That raises another question, I mean, is it possible grounds for disbarment. I mean, it's not doing your job at that point, you're not an advocate for your client at that point.

Jay Schweikert:                 So one thing I will say is that ... You know, I mean ... I, I am sympathetic to the difficult position that Mr. English here was in, and um, so this is in Louisiana, uh, which is in the Fifth Circuit, and there actually is a Fifth Circuit case um, that says in this kind of situation the lawyer gets to decide. In fact, has to decide. That's the minority position. Most of the lower courts that have decided on this kind of question, have, have said that it's within the defendant's um, province.

                                                But, you know, Mr. English looked at this law, and consulted with the trial court and said he thought he had to do this, and you know, I- I- I mean, I understand that it was a difficult decision and I think, you know, if, if Mr. McCoy had shared the objective of putting on a mitigation case to try to avoid the death penalty, I think English would have been doing a reasonable job, right? Which is why I think, it's not, it's not right to look at this as an ineffective assistance of counsel case, because this counsel may have been, you know, a, a, a reasonably good advocate for the position he was advocating for.

                                                It just wasn't his client's position. That's the problem. You know, so, so I don't want to necessarily cast aspersions on Mr. English's you know, character or diligence in this case. Um, you know, it's fundamentally a structural problem where you know, and- and the trial court itself, you know, you know, told Mr. English to proceed on this path. So ... You know I think we can say, you know, at the same time ... Mr. McCoy's autonomy was violated and he had a right to decide this question and not necessarily say that he had a wholly incompetent attorney, right.

                                                What we need here is a clear rule from the Supreme Court saying that whether to admit guilt is within the client's prerogative and if everyone had known that rule going in, you know, I'm sure we wouldn't have had this kind of farce at trial, where the defensive counsel was cross-examining his own client.

Gary:                                     Yeah, I, I agree, I'm going [inaudible 00:42:17] but I think that, um, [inaudible 00:42:20] client is a strategy, why then also add [inaudible 00:42:25] evidence against your own client. I don't see where that's necessary. Yeah, I, I see what you're saying. Thanks again.

Wesley Hodges:                Thank you, caller, for that great discussion. Um, doesn't look like there are any more questions in the queue, so I just want to remind everyone that you can find this call, eventually it will be edited and uploaded to our website as a podcast and you can find the history of all our previously recorded teleform calls as podcast and we, we invite you to look at that on our website at

                                                Uh, Jay, do you have any closing remarks before we end the call today?

Jay Schweikert:                 Um, I don't think so, you know, I appreciated everyone's questions and I think especially the uh, attention to the importance of the criminal jury trial generally, and how this case relates to it. Um, I think that's what makes this so important uh, and yeah, I think this is, this is, this case is one part of, I think, a much larger effort to, you know, restore the criminal jury trial as the baseline of our uh, criminal justice system, um, and I'm hopeful that the Supreme Court will issue a rule that helps in that regard.

Wesley Hodges:                Wonderful. Well, on behalf of the Federalist Society, I'd like to thank our speaker today for the benefit of his valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us today. This call is now adjourned.


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