Jim Dey: Case has defense lawyer on hot seat

Jim Dey: Case has defense lawyer on hot seat

It's standard operating procedure for one lawyer to stand before a jury in a criminal trial and tell jurors the evidence demonstrates the defendant's guilt.

But what happened during Robert McCoy's death-penalty murder trial in Louisiana was unique, so much so that the U.S. Supreme Court recently decided it would review the case of McCoy, who was convicted of murder for killing three of his estranged wife's relatives and sentenced to death.

The prosecutor told the jury evidence showed McCoy's guilt. So did McCoy's lawyer.

"I'm telling you Mr. McCoy committed these crimes," veteran defense lawyer Larry English told the jury.

English's client was not happy with his lawyer's concession, and he protested vociferously to Judge Jeff Cox.

"Mr. English is simply selling me out," McCoy complained.

Defense lawyers, of course, have a variety of decisions to make on their clients' behalf as they decide the proper course to take. The one English faced was among the most difficult defense lawyers can face.

McCoy's lawyer felt the case, based on the overwhelming evidence of guilt, against his client was hopeless. He concluded the best possible outcome would not be to win an acquittal but for McCoy to escape the death penalty.

But when English told McCoy his strategy, McCoy insisted on his innocence and demanded that English represent him on that basis. English refused. So McCoy took his complaint to Cox, who declined to delay the trial so McCoy could get a new trial or allow McCoy to represent himself.

English conceded his client's guilt, hoping that it would give him the credibility he needed to persuade jurors to spare McCoy's life.

The jury, nonetheless, imposed death, and the Louisiana Supreme Court unanimously upheld the constitutionality of English's trial strategy and McCoy's conviction and sentence.

Now the U.S. Supreme Court, which denies far more requests than it grants, has decided to review McCoy's case.

The question before the court: Does it violate the U.S. Constitution if a defense lawyer concedes, as a matter of strategy, a client's guilt over the repeated, expressed objections of the client? Or, to put it another way, was McCoy denied the effective assistance of counsel, as the U.S. Constitution requires?

No case of a similar nature from Champaign County or the state of Illinois comes to mind. Writing in the 2008 case of People v. Sims, the Illinois Supreme Court cited a previous precedent in which it noted that it has "condemned the practice of conceding guilt after a not guilty plea was entered."

"We did not in that case hold that it is per se ineffective when the defense attorney concedes his client's guilt to offenses in which there is overwhelming evidence of that guilt but fails to show on the record consent by defendant," the Illinois Supreme Court wrote.

The issue required further exploration of the circumstances, the court concluded, including the extent to which the defense challenged other aspects of the prosecution case.

McCoy's appeal to the high court makes an obvious argument, "whether to concede guilt at trial is ultimately the defendant's to make." In other words, McCoy contends, it's a "right that personally belongs to the defendant," even though it may not be in the defendant's best interest to invoke.

Local defense lawyer Steve Beckett, a retired member of the University of Illinois College of Law faculty, agrees with that premise and predicted that the high court will reverse McCoy's conviction and order a new trial.

"If you accept the underlying premise of our criminal justice system, the prosecution has the burden to prove (the defendant) guilty beyond a reasonable doubt," he said.

Beckett acknowledged that defense lawyers have a variety of tactical decisions to make that give them wide discretion as they proceed. But wide discretion, he said, is not unlimited discretion.

"I do not think that just because I'm a lawyer I get to do everything I want to do," he said, "It's not the defense lawyer's strategy, it's the defendant's."

Appellate court Judge Robert Steigmann said he is sympathetic to Beckett's assessment, but "I disagree with Steve that it is a slam dunk."

"The fact that (conceding guilt) over the defendant's specific objections make things trickier," he said.

Judge Steigmann noted that there are a handful of decisions during a criminal trial that are the defendant's call. They are whether to have a bench trial by a judge or a jury, whether to testify or not, and whether to ask the court to allow the jury to include lesser-included offenses to the principal charge.

The final one, he said, is whether or not to plead guilty.

The guilty plea issue can be interpreted in more than one way in this case.

Plead guilty before the trial and go directly to sentencing? Or plead not guilty and proceed to trial, where in this case the defense lawyer conceded guilt as a matter of strategy.

"If a case is strong and you're sure your client is going to be convicted of murder, an argument along (the lines McCoy made) is entirely reasonable," Steigmann said.

However, he conceded that the choice presented to the high court in McCoy v. Louisiana is a "tough call."

"This is one of those points where I'd like to read the (legal) briefs and listen to what the lawyers have to say," Steigmann said.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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rsp wrote on October 12, 2017 at 2:10 pm

Other factors--the lawyer was not death penalty certified. One of the reasons the judge gave for refusing to grant relief was that it was just a delay tactic on the part of the defendant. The defendant felt there was a conflict with the public defenders office so refused to work with them. Judge okayed that even though they are death penalty certified. The law required him to have two lawyers for a death penalty case but he only had one. The judge and prosecurer had him sign a waiver.

At what point do you predict it isn't going to turn out well? And how many other cases are out there where it's "okay" to have a lawyer who isn't "qualified" under the law?

It's the judge's courtroom. He/she is responsible for what happens there.