Death penalty trials, beyond a doubt, are the most difficult for a criminal defense attorney to try. These trials are conducted in two phases: the guilt phase and the punishment phase. Once guilt has been found by the jury during the first phase, defense counsel must try in the second phase to mitigate the defendant’s guilt with evidence that will convince the jury that a life sentence—almost always without the benefit of parole—is a more appropriate punishment than the death penalty.
Mitigation is a difficult bronc to ride. With its guilt finding, jurors have made it clear that they believe beyond a reasonable doubt that the defendant committed the gruesome crime(s) for which he was indicted. And the fact that each juror before they could be accepted to hear the case had to express to the State that they had no objections to the death penalty effectively means that jurors enter the punishment phase with a presumption that the death penalty is the punishment that fits the crime.
Acceptance of Responsibility, Remorse and Mitigation
Admission of guilt and a collateral expression of remorse are the first two mitigation factors a death penalty-prone jury wants to hear. Other mitigating factors such intellectual disability, child abuse (physical and/or sexual), history of drug abuse, impoverishment, age, lack of intent, etc. can be utilized to bolster the guilt admission/remorse expression factors but from a practical perspective the door to a life sentence can only be opened with the guilt/remorse factors.
But what about a defendant charged with capital murder who insists upon maintaining his innocence throughout both phases of his trial?
That is the excruciating question Louisiana criminal defense attorney Larry English faced during his representation of Robert McCoy who had been indicted for capital murder in Bossier Parish.
In May 2008, someone murdered Christine and Willie Young and Gregory Colston in the Young residence in Bossier City, Louisiana. Christine and Willie were the parents of McCoy’s estranged wife, Yolanda. Gregory was Yolanda’s son. One of the three victims managed to call 911 before their deaths. The 911 operator heard Christine say: “She ain’t here, Robert. I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t here, Robert.” The operator then heard a gunshot and the call was disconnected. All three victims had been shot a single time in the head at close range.
Facts Point to Compelling Case Against Suspect
The police immediately placed a vehicle at the scene of the crime that was registered to Robert and Yolanda McCoy. The police discovered the phone used to make the 911 call inside that vehicle. They also found a Walmart receipt for the purchase of a box of ammunition, the kind used to kill the victims. Walmart surveillance footage showed McCoy making that purchase. Law enforcement arrested McCoy in Lewiston, Idaho. They found the murder weapon under the passenger seat of the vehicle in which McCoy was riding.
Robert McCoy was extradited back to Louisiana nine days after the triple murder. He was indicted by a Bossier Parish grand jury on three counts of first degree murder—all capital offenses in Louisiana. He pled not guilty to the charges after which the State announced its intention to seek the death penalty. The parish Indigent Defender Board (“IDB”) was appointed to represent McCoy. The IDB moved for the appointment of a sanity commission to determine McCoy’s ability to understand the charges against him and to assist in his own defense. A court-appointed psychiatrist and psychologist subsequently informed the trial court that McCoy was competent to stand trial.
Defendant Seeks to Represent Self in Capital Murder Case
By December 2010, McCoy had become dissatisfied with the representation being provided by the IDB. He petitioned the trial court requesting leave to dismiss the IDB and to represent himself until his family could retain another attorney. Two months later the trial court conducted a hearing on the self-representation issue at which the court determined that McCoy wanted to proceed pro se only until his family could secure the services of an attorney. McCoy informed the court that even if his family could not get him an attorney, he would be prepared to proceed with the trial scheduled for May 2011.
This is where attorney English entered the case.
In a January 15, 2018 New York Times article, English told reporter Jeffery C. Mays that he knew the McCoy family and Robert as well. Although he was not a certified death penalty lawyer, English felt compelled at the outset to take the case because McCoy needed his help. As he told the Times:
“Anybody representing themselves in a death penalty case is guaranteeing a death sentence.”
The first thing the trial court did after English enrolled in the case was to inform McCoy that the attorney was not death penalty certified.
It was at this point that English encountered the first conflict with his client. The attorney filed a motion to continue the May scheduled trial date. The judge was forced to deny the motion because McCoy had already filed a pro se motion for a speedy trial. English, McCoy and the court were ultimately able to resolve McCoy’s speedy trial demand by delaying the trial until January 2011.
Defendant Demands Conspiracy Defense Strategy
As English worked with local death penalty attorneys trying to formulate a defense strategy, McCoy was insisting that the attorney pursue a conspiracy defense that the Bossier City police actually murdered the victims in a drug deal gone bad. Given the weight of both the direct and strong circumstantial evidence against McCoy, English knew this conspiracy defense would not prevail and, in fact, would probably contribute to a guilty verdict.
Defense Attorney Requests Mitigation Expert
In December 2010, English motioned the trial court to have mitigation experts appointed in the event a guilty verdict was returned during the first phase of the trial. At this point a volcanic fissure erupted between English and McCoy. The defendant did not want to concede guilt or pursue a mitigation defense at the punishment phase. He instructed English not to file the motion for mitigation experts. English informed the trial judge that his client was suffering from “severe mental and emotional issues that have] an impact upon this case” and asked the court to “order that Mr. McCoy submit to the experts that are required in a capital case.”
Defendant Refuses Appointment of Secondary Counsel
The trial judge was faced with a defendant who had filed a slew of pro se motions making a host of irrational demands and an attorney who disavowed those motions. Although McCoy eventually agreed to withdraw the pro se motions, the State requested that the trial court appoint co-counsel as required under Louisiana rules in capital cases. McCoy vociferously objected to the State’s request that the IDB be assigned as co-counsel, stating that he would not be “strong armed” into accepting any involvement of the IDB in the case. He then waived his right to the appointment of secondary counsel.
Just two days before the scheduled July 2011 trial was to begin, English informed trial judge that McCoy was prepared to “terminate” his services in the case. McCoy informed the court that English had urged him to “cop out to three counts of first degree murder” and suggested that the attorney didn’t want to “go to trial” in the case. He asked that he be allowed to represent himself. The judge denied the request and ordered the trial to proceed as scheduled.
Defense Counsel Concedes Guilt in Opening Statement
In his opening statement, English conceded McCoy’s guilt in the three murders, but asked jurors to view the offenses as second degree murder (non-capital offenses) because his client was suffering “from serious emotional issues” that restricted his ability “to function in society and to make rational decisions.”
English told the Times that “when you’re in a courtroom fighting for someone’s life, you bring every skill and trick of the trade to save that person’s life. A death penalty case is not normal.”
Defendant Testifies Regarding Conspiracy Defense
McCoy was furious by the guilt concession. He insisted to English and the trial court that he be allowed to testify in order to present his alibi/grand conspiracy defense to the jury. McCoy’s testimony about the police killing the victims followed the State’s presentation of eleven witnesses and 100 exhibits that implicated him in the three murders.
The jury returned a guilty verdict.
During the punishment phase, the State presented five victim impact witnesses and English called one mitigation expert witness. The jury returned a death penalty verdict.
“I walked out of that courtroom saying I could never put myself through that again, emotionally,” English told the Times from his New York law office where now practices real-estate law. “I went into a deep depression. My wife urging me to see someone. That never happened before in my legal career.”
Case Takes Toll of Defense Attorney
And English had established a remarkable legal career in Louisiana. After graduating from Tulane University, the Times reported that he became president of a local NAACP chapter and a local school board. He had successfully secured the dismissal of quadruple homicide charges against a Walmart clerk six years before taking on the McCoy case. He was closing down his Louisiana criminal defense practice at the time he took on the case before moving back to New York where he had once played point guard for the Knicks.
English conceded to the Times that he had relished the “gunslinger” aspect of criminal defense work.
“Being a criminal lawyer in the American justice system is like doing triage for black men,” he told the newspaper. “By the time they get to you, you’re dealing with the effects of absent fathers and poverty. They are 19 years old and about to go to jail for 20 years. All these lives are coming in, and you are doing everything you can to save them. It was my way of fighting the system.”
The McCoy case grievously injured the “gunslinger.” Although he walked away from criminal defense practice, the criminal justice system was not done with him. The Louisiana Capital Assistance Center took over the mandatory appeal of McCoy’s death sentence. They raised sixteen issues on appeal to the Louisiana Supreme Court, the most prominent of which was that a client, not the attorney, is the only person who can concede guilt to the jury. That court in October 2016 rejected this and all the other issues raised in the appeal.
SCOTUS Hears Case
The U.S. Supreme Court agreed to hear the sole issue of whether an attorney can concede a client’s guilt to a jury over the client’s objections. The Louisiana Association of Criminal Defense Lawyers and the Ethics Bureau at Yale Law School joined with the Louisiana Capital Assistance Center to argue that a criminal defense attorney should not be allowed to concede a defendant’s guilt against the wishes of the defendant.
The case was argued before the Supreme Court this past January.
The 62-year-old English, a sharecropper’s son who is now the chairman of a real estate law firm in Harlem, was present in the court to hear those arguments.
Lawrence J. Fox, the attorney representing the Yale Ethics Bureau, told the Times that it is not unusual for an attorney to admit their client’s guilt, especially in death penalty cases, with the client’s approval. The Supreme Court has approved this practice on at least four prior occasions.
“This is one of the most difficult questions that we’ve identified in being a lawyer,” Fox told the Times. “You start with the fundamental proposition that we are our client’s servants … It means that some clients on death row may be committing suicide, but that’s their choice to make.”
Client, Not Attorney, Must Have Final Say About Defense
On May 14, 2018, the U.S. Supreme Court agreed. The High Court held that “the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”
English told the Times: “The greatest thing I ever did as a lawyer, and the most important thing I ever did as a lawyer, was to take Robert McCoy’s case.”
We empathize deeply with the dilemma faced by English, but at the end of the day we have to agree with Mr. Fox: the client, not the attorney, must have the final say about the defense to be presented, especially when it comes to concession of guilt—even when a client’s decision guarantees a guilty verdict.