Who controls the defense strategy in a criminal trial: the attorney or the defendant?


That is a question the U.S. Supreme Court will answer in its current term.


Normally, a defense attorney, once he or she accepts a representation in a criminal case, will investigate the facts and research the law to properly advise the client of all of the legal options open to him or her. It is a process in which the attorney and client collaborate with each other to develop the best defense strategy possible.


Death Penalty Case Highlights Attorney/Client Conflicts


Robert Leroy McCoy was indicted in May 2008 by a Bossier Parish grand jury for first degree murder involving three victims. The trial court assigned the local public defender’s office to represent McCoy. In July 2008, Louisiana prosecutors in Bossier City noticed its intention to seek the death penalty.


By December 2009, a serious conflict of interest had developed between McCoy and the public defender’s office—not an uncommon occurrence in indigent cases. McCoy informed the trial court in January 2010 that his family would retain private counsel to represent him.


The following month, February 2010, McCoy informed the trial court that he wanted to forego counsel and assert his constitutional right to represent himself.  He said the self-representation would last only until he could get private counsel enrolled in the case. He told the trial judge that if he could not secure the services of private counsel, he would be prepared to defend himself at the trial scheduled in three months.


Counsel Struggles with Demands of Client, Court


Shreveport attorney Larry English formally enrolled in the case with the caveat to the trial court that he was not “board certified” to handle a death penalty case. He informed the court that he had been in touch with death penalty certified attorneys about assembling a legal defense team in the case. The trial judge discussed the issue of English’s non-certification issue McCoy who insisted he want to proceed with the attorney.


English promptly filed a motion for continuance—a motion the trial court denied because McCoy had previously filed a pro se motion for a speedy trial. The trial court then relieved the public defender’s office of its representation in the case. English next sought an appellate review of the trial judge’s decision to deny a continuance, and while that review was pending, the trial court elected to conduct an additional hearing on the continuance issue.


English informed the trial judge that he was “having trouble putting together a legal team to represent Mr. McCoy because nobody wants to step into a capital murder case that they’ve got to go to trial on within such a period. I’m still not up to speed or nearly ready to undertake representation of Mr. McCoy.”


English, with McCoy’s approval, withdrew the defendant’s pro se speedy trial motion. The trial judge then granted an eleven month continuance with this warning to the defense attorney. “Mr. English, I want you to understand that if I grant this continuance you will not be allowed to withdraw” from this case in the future.


Lawyer Pursues Line of Defense Against Client’s Wishes


A conflict developed between McCoy and English by December 2010. The attorney sought funds from the court to secure the services experts in order to pursue a defense strategy that McCoy’s “severe mental and emotional” issues contributed to the offense. He further asked the court to “order” that McCoy “submit to the experts that are required in a capital murder case.”


McCoy had previously informed English that he did not want to pursue that defense strategy. English informed the court of McCoy’s disagreement with the defense strategy. The attorney told the court that if he followed McCoy’s directive, he would not able to provide the defendant with the kind of representation required in a capital murder case. English also informed the court that he had been relying on the capital punishment expertise of the public defender’s office in developing his defense.


Defendant Refuses Additional Counsel, Public Defender


At a January 2011 hearing, McCoy informed the court that he did not want the public defender’s office involved in the case in any way; that he was prepared to go to trial with one attorney who was not board certified to handle a capital case rather than the standard two attorneys.


At the urging of an appellate court and the district attorney’s office, the trial court in February conducted a hearing on the issue of whether the case could be tried with one non-certified death penalty attorney. The district attorney’s office requested the standard two attorney representation in capital cases.


McCoy told the court he was “totally opposed” to the public defender’s office involvement in his case and “most of all, I choose not to be strong armed to take a public defender’s aspect of secondary counsel when that’s totally against my wishes.” He then told the court that he “knowingly and voluntarily” waived the appointment of any additional counsel in the case.


The trial of the case commenced in July 2011.


Defense Lawyer Concedes Guilt in Opening Statement


In his opening statement, English conceded McCoy’s guilt, stating to the jury, “I’m telling you Mr. McCoy committed these crimes,” but qualified the admission by saying his client was suffering “from serious emotional issues” that restricted his ability “to function in society and to make rational decisions.”


McCoy objected to this admission of guilt. He insisted that English pursue a “not guilty” defense. English refused. McCoy motioned the court to have the attorney removed from the case. The trial judge denied the motion. McCoy then insisted on testifying in his own defense. The judge allowed him to testify. McCoy told the jury he was innocent and had been out of Louisiana at the time of the murder.


Defendant objects to Defense Strategy and Testifies as to Alibi


McCoy’s testimony came after the prosecution had presented eleven witnesses and introduced 100 exhibits that supported the defendant’s guilt.  English believed that McCoy’s testimony notwithstanding, the State’s case against his client was overwhelming.


The jury thought so too. They found McCoy guilty as charged on all three murders.


English called one mitigation expert to testify at the penalty phase.


The jury was not impressed—it returned a death penalty verdict.


SCOTUS to Decide Case


The question before the Supreme Court now is whether McCoy is entitled to a new trial because English disobeyed his instruction to pursue a “not guilty” defense over the admission of guilt/mitigation defense.


The Louisiana Supreme Court answered the question this way: “Given 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.”


This is truly a difficult but significant question before the high court. An attorney owes an obligation to pursue his client’s defense wishes within the boundary of the law while maintaining his ethical duty to fight for his client’s life when the death penalty is at stake.


The first mistake English made was taking the McCoy case. He was not certified to handle death penalty cases. He assumed he would be able to secure resources from the court and expertise from others in formulating an effective defense strategy. Neither proved correct.


McCoy appears to have been a difficult, if not impossible client. He quickly soured on the public defender’s office. He wanted to represent himself, although he was unskilled to do that. This was evidenced by his pro se motion for a speedy trial when he had neither the finances nor the resources to develop a credible defense. He believed that the entire system—the court, prosecutors, and attorneys—were out to get him, and we are not in a position to assess the credibility of that belief. What we can assess is the terrible tactical decision he made to testify about a not guilty defense after English had presented an admission of guilt/mitigation defense in his opening statement.


We don’t know how the Supreme Court will rule and we will reserve any opinion as to how we think the court should rule.  Most likely, the trial court contributed to this fiasco error by not ordering a competency exam and probing into counsel’s ability to represent McCoy, under these particular circumstances.


The National Association of Criminal Defense Lawyers has filed a compelling amicus brief that correctly, and concisely, argues that it is the accused’s decision whether to concede guilt.  This is a fundamental constitutional right protected under the Fifth and Sixth Amendments.  “Accordingly, defense lawyers must honor a defendant’s express decision to maintain his innocence and not concede guilt.”  Conceding guilt over a client’s objection deprives a defendant of his fundamental right to plead not guilty.


The old adage that “every man has a right to go to hell in his own way” is instructive in this case and, it appears, some of the Justices may agree.  We shall soon see.