Whose Side Is A Lawyer On?

The rules and norms governing the profession place an enormous amount of weight on the lawyer’s loyalty to the client. Sometimes this even requires lawyers to behave in ways that non-lawyers might find grotesquely immoral. There are strong reasons to do this, though, that get less strange after you have some time to get used to it. For one the relationship between a lawyer and her client gives the lawyer such a great capacity to screw the client over. If lawyers are going to keep convincing people to pay us for our services, it’s important to convince them that we don’t do that. But at a less cynical level, the justice system relies upon the adversarial process to arrive at truth. That means that each side of the case needs a qualified person putting up the best argument that they can. If a client can’t trust their lawyer to represent their side, that threatens the whole edifice. So while the case turns upon a Constitutional question, having this ethos pounded into your head in law school and in practice is what makes McCoy v. Louisiana, a death penalty appeal currently before the Supreme Court, so striking.

Robert McCoy was charged in the triple murder of his estranged wife’s mother, stepfather, and son. Upon taking the case and reviewing the evidence, his lawyer, Larry English, decided that he would not be able to prove McCoy’s innocence. Instead, he thought the best way to avoid the death penalty was to admit his client’s guilt and then argue for mitigation. This is often a prudent strategy in a death penalty case, but McCoy wasn’t interested. He insisted that he was innocent, that he had been framed by the police, and that he would not under any circumstances admit to the murder of his family members. After the court refused McCoy’s request to have English replaced by another lawyer, the case went to trial. In it, McCoy and English were essentially arguing against each other. English admitted McCoy’s guilt in his opening and closing statements, to which McCoy objected. He insisted that he was innocent and that he was being railroaded by his own attorney. Neither English’s strategy nor McCoy’s claims of innocence worked; he was convicted of the three murders and sentenced to death.

McCoy’s appeal, which had oral arguments before the Supreme Court last week, contends that English’s admission of McCoy’s guilt meant that his 6th Amendment right to the assistance of an attorney had been violated. The Court has heard a lot of cases involving claims of ineffective assistance of counsel, and the caselaw is not friendly to defendants. Courts are extraordinarily skeptical of claims that defense attorneys at trial were incompetent. They will usually uphold convictions if an even vaguely plausible strategic reason can be concocted to explain whatever ludicrous thing the defense attorney did. If they can’t do that, they’ll uphold the conviction if the defendant fails to show that his lawyer’s incompetence prejudiced his defense. If McCoy were claiming that English was incompetent, the Supreme Court would never have heard the case in the first place.

He’s not, though, and his argument makes the question much more interesting. To borrow the terms with which the rules of professional responsibility describe a lawyer’s obligations, McCoy’s complaint isn’t about the means of representation. It’s about the ends. As English understood it, McCoy’s objective was to get the most favorable outcome: an acquittal if possible, avoiding the death penalty if not. He weighed the odds of those outcomes and chose the strategy that would achieve the best plausible outcome: life in prison. To McCoy, however, the most important thing might be his name. A defendant in his position might be indifferent between an execution and a lengthy prison term or even prefer the former. In McCoy’s view, only the client can make that decision, not the lawyer.

I’m not going to pretend that my guess about how the court will rule is better than anyone else’s reading this. My hope, though, is that the McCoy can find the five votes he needs to win. Justice Breyer’s concern at oral argument, that defendants who lack the expertise to fully understand the ramifications of their choices will get convicted or executed because they overrule their savvier attorneys, is a real one. Yet despite an attorney’s expertise, he’s not the one facing down the awesome power of the state. We are advocates: agents of the will of another. If the client assesses his interests in a different way than we do, then arguing the contrary isn’t giving him effective assistance at all. Larry English was operating in good faith here. He certainly wasn’t incompetent. He understood his duty in a way that made him something worse: disloyal.