Jim Dey | Please acquit my guilty client ...

Jim Dey | Please acquit my guilty client ...

Supreme Court Justice Ruth Bader Ginsburg, in a Louisiana murder case involving an unrealistic defendant, wrote a 12-page single-spaced decision that can be summed up in five words, "Go ahead. It's your funeral."

The case, one previewed in this column last October, involved accused murderer Robert McCoy and the controversial tactic defense lawyer Larry English employed in an attempt to save his life.

Accused of killing three family members, McCoy faced a death sentence if convicted. To say the evidence against him was overwhelming would be minimizing the prosecution case. To borrow a phrase, the state's attorney could have thrown out half the evidence and still got a conviction standing on his head.

But in an ode to unrealistic defendants everywhere, McCoy insisted he was innocent. He claimed he was the victim of a grand conspiracy involving police in multiple states and, as a consequence, falsely accused.

He wanted to get on the witness stand — and, in fact, did — and tell the jury all about it.

Defense lawyer English was convinced that approach would fail and that his only hope was to save his client's life. Over his client's objections, English acknowledged to the jury that McCoy had killed his family members.

In doing so, he hoped that jurors would feel some sympathy for McCoy's obvious emotional issues and spare his life.

They didn't. McCoy appealed, arguing that his constitutional right to effective assistance of counsel was violated when English ignored his desire to argue his innocence.

The Louisiana Supreme Court upheld McCoy's conviction, holding that English was a defense lawyer put in the hellish tactical position and did the best he could.

In a 6-3 decision, the U.S. Supreme Court this week overturned McCoy's conviction, sending the case back for retrial.

Writing for the court majority, Justice Ginsburg wrote that conceding guilt was a prerogative the defense lawyer did not have.

"We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty," she wrote.

Why?

Well, she suggested, it's his funeral. If the typical unrealistic defendant chooses to roll the dice, he'll have to live — or not — with the consequences.

"... the client may not share that objective (of escaping the death penalty). He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk the death for any hope, however small of exoneration," Ginsburg wrote.

She was joined in the opinion by Justices Anthony Kennedy, John Roberts, Sonia Sotomayor, Stephen Breyer and Elena Kagan.

To show just how fine the facts can be in cases like this, Ginsburg wrote a previous majority court decision (Florida versus Nixon) affirming a defendant's guilt in a case where the defense lawyer also conceded the client's guilt. But in that case, the defendant remained silent, unlike McCoy, who vehemently objected.

But, as Justice Samuel Alito's stirring dissent contended, the case was more complicated than the court majority suggested.

Writing for Justices Clarence Thomas and Neil Gorsuch, Justice Alito suggested the majority shaded the facts "by attributing to his trial lawyer Larry English something that English never did."

In his opening statement, English acknowledged that his client killed the three victims while maintaining that McCoy was not guilty of first-degree murder because "he lacked the intent required for the offense."

To many, perhaps most people, that's distinction without a difference. Justice Alito outlined two defense opening-statement scenarios that he said summed up the majority's position.

"Constitutional: 'First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I submit to you that my client did not have the intent required for conviction for that offense.'"

"Unconstitutional: 'First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I admit that my client shot and killed the victims, but I submit to you that he did not have the intent required for conviction for that offense.'"

While Alito said the practical difference between those two statements is "negligible," the latter statement is now held to be a "violation so egregious that the defendant's conviction must be reversed even if there is no chance that the misstep caused any harm. It is no wonder that the court (majority) declined to embrace this argument and instead turns to an issue that the case at hand does not actually present."

Kudos go to local defense lawyer Steve Beckett for predicting how the court would rule. He stated last fall that lawyers have considerable discretion when it comes to tactics but that there are some decisions that are the defendant's alone.

"It's not the defense lawyer's strategy, it's the defendant's," he presciently* stated.

The question now is what's next.

If McCoy sticks to his "I'm a victim of a conspiracy" stance, his new defense lawyers will be no better off than English was. Noting that predicament, Justice Alito couldn't help but wickedly speculate about how English's second-guessers will respond.

"If (McCoy) is retried, it will be interesting to see what (McCoy's) current counsel or any other attorney to whom the case is handed off will do. It's a safe bet that no attorney will put on (McCoy's) conspiracy defense," he said.

* — Word of the day: "Presciently" means with foreknowledge or apparent knowledge of things before they happen or come into being.

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.