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Whose Defense Is It? Yours Or Your Client's?

The ultimate choice should be left to the client, whether the attorney thinks it's a good choice or not.

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What happens when your client insists on one defense, and you on another? And what if the case involves the death penalty?

That’s the issue the Supreme Court is deciding in McCoy v. Louisiana, a case based on a 2008 triple murder in Bossier City, Louisiana.

The prosecution asserted that Robert McCoy went to his in-laws’ house searching for his estranged wife and, not finding her, shot and killed his wife’s mother, father, and son.  The evidence against him was strong.  The gun used in the shooting was found on him when he was arrested.  A 911-tape captures his mother-in-law screaming his name just before being shot.  Her cell phone was later found in an abandoned car nearby.

McCoy went to trial and decided his best defense was alibi. He wanted his counsel to say he was not in the area at the time of the murders and that police planted the gun on him.

However, his lawyer, Larry English, thought a Louisiana jury wouldn’t believe that defense and knowing that the death penalty was a possibility, opted instead to admit his client committed the murders in hopes of winning juror trust and establishing McCoy was not in his right mind during the shootings.

He opened by telling the jury that McCoy committed the three murders.  McCoy shouted from his seat, “Mr. English is simply selling me out.”

In Louisiana, it’s acceptable for an attorney to use a trial strategy that differs from the client’s. When that happens, the client has two options — either agree with his counsel or go pro se.  That’s not much of a choice.

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At the trial’s end, Mr. McCoy was found guilty of all charges and sentenced to death.

The case is now before the Supreme Court and based on initial argument before the justices, it’s a tough call.

Every criminal defense attorney has walked down this road, rarely for something as serious as the death penalty, but in many cases that go to trial. The assumption is: I’m the lawyer and I know better how to get you out of this jam.  But this isn’t always true.

Furthermore, it poses an ethical dilemma.  Lawyers are charged with carrying out their client’s wishes, involving them in each step of the process, and making sure their decisions are voluntary and informed.  But what if the client chooses a path the lawyer firmly believes will harm him? Should the lawyer submit to his client’s wishes or override them?

Every case is different, but it’s clear that just about any counsel worth his salt knows more than the client — the ins-and-outs of the law, the functioning of the judicial system, the jury pool available, the plea bargains likely from the prosecution and the intricacies of a jury trial. Thinking otherwise would be like insisting your surgeon operate on you with one scalpel rather than another. It could be suicide.

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Every client, however, no matter his educational background, has the right to choose the course of his criminal case.  For McCoy, maybe it was harder for him to admit to killing his in-laws and his son than to face the death penalty. Maybe he would have rather rolled the dice on the possibility of acquittal even if a loss meant being put to death.

When I grappled with this issue early in my career as a public defender, my wiser and more-experienced officemate analogized it to being a shoe salesman.  We’re in the service business.  You explain to the client which shoe could be more comfortable; you give him his choices and prices, then leave it to him.  It’s up to him what he wants to wear.

I’ve held to the advice ever since.  The trick is doing the work that guarantees you’re showing the client all the shoes possible. In criminal law, that means doing the prep work: investigating the case thoroughly, researching the law, speaking to the prosecution, and building a rapport with the client so tight that he ultimately trusts whatever opinion you render.

Telling a client at the first meeting you need to plead guilty won’t build trust.  Relaying this same opinion after understanding his perspective, answering his questions, looking for holes in the prosecution’s case, fighting hard for better deals, and then consoling him, will get a much different result.

Distrust, however, is often automatic. Many indigent clients think their court-appointed lawyers work for the state or get paid more if the they plead guilty. Then there are issues of lack of education and mental illness which make it all the more difficult for defense attorneys to convey options in a way clients will understand and absorb.

As far as I’m concerned, after the attorney’s done his job — the run-up work that helps the client know his counsel’s been fighting for him, looking for alternatives, and that he really cares — the ultimate choice should be left to the client whether the attorney thinks it’s a good choice or not.

As Judge Sonia Sotomayor, the only sitting Supreme Court member with boots-on-the-ground criminal law experience, said in debating McCoy last week, “They [the defendants] can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.”

I agree.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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