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SUPREME COURT OF THE UNITED STATES
_________________
No. 16–8255
_________________
ROBERT LEROY McCOY, PETITIONER
v.
LOUISIANA
on writ of certiorari to the supreme court of
louisiana
[May 14, 2018]
Justice Ginsburg delivered the opinion of the
Court.
In
Florida v.
Nixon, 543
U. S. 175 (2004), this Court considered whether the
Constitution bars defense counsel from conceding a capital
defendant’s guilt at trial “when [the] defendant, informed by
counsel, neither consents nor objects,”
id., at 178. In that
case, defense counsel had several times explained to the defendant
a proposed guilt-phase concession strategy, but the defendant was
unresponsive.
Id., at 186. We held that when counsel confers
with the defendant and the defendant remains silent, neither
approving nor protesting counsel’s proposed concession strategy,
id., at 181, “[no] blanket rule demand[s] the defendant’s
explicit consent” to implementation of that strategy,
id.,
at 192.
In the case now before us, in contrast to
Nixon, the defendant vociferously insisted that he did not
engage in the charged acts and adamantly objected to any admission
of guilt. App. 286–287, 505–506. Yet the trial court permitted
counsel, at the guilt phase of a capital trial, to tell the jury
the defendant “committed three murders. . . . [H]e’s
guilty.”
Id., at 509, 510. We hold that a defendant has the
right to insist that 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.
Guaranteeing a defendant the right “to have the
Assistance
of Counsel for
his defence,” the Sixth Amendment so demands.
With individual lib- erty—and, in capital cases, life—at stake, it
is the defendant’s prerogative, not counsel’s, to decide on the
objective of his defense: to admit guilt in the hope of gaining
mercy at the sentencing stage, or to maintain his innocence,
leaving it to the State to prove his guilt beyond a reason- able
doubt.
I
On May 5, 2008, Christine and Willie Young and
Gregory Colston were shot and killed in the Youngs’ home in Bossier
City, Louisiana. The three victims were the mother, stepfather, and
son of Robert McCoy’s estranged wife, Yolanda. Several days later,
police arrested McCoy in Idaho. Extradited to Louisiana, McCoy was
appointed counsel from the public defender’s office. A Bossier
Parish grand jury indicted McCoy on three counts of first-degree
murder, and the prosecutor gave notice of intent to seek the death
penalty. McCoy pleaded not guilty. Throughout the proceedings, he
insistently maintained he was out of State at the time of the
killings and that corrupt police killed the victims when a drug
deal went wrong. App. 284–286. At defense counsel’s request, a
court-appointed sanity commission examined McCoy and found him
competent to stand trial.
In December 2009 and January 2010, McCoy told
the court his relationship with assigned counsel had broken down
irretrievably. He sought and gained leave to represent himself
until his parents engaged new counsel for him. In March 2010, Larry
English, engaged by McCoy’s parents, enrolled as McCoy’s counsel.
English eventually concluded that the evidence against McCoy was
overwhelming and that, absent a concession at the guilt stage that
McCoy was the killer, a death sentence would be impossible to avoid
at the penalty phase.[
1] McCoy,
English reported, was “furious” when told, two weeks before trial
was scheduled to begin, that English would concede McCoy’s
commission of the triple murders.
Id., at 286.[
2] McCoy told English “not to make that
concession,” and English knew of McCoy’s “complet[e] oppos[ition]
to [English] telling the jury that [McCoy] was guilty of killing
the three victims”; instead of any concession, McCoy pressed
English to pursue acquittal.
Id., at 286–287.
At a July 26, 2011 hearing, McCoy sought to
terminate English’s representation,
id., at 449, and English
asked to be relieved if McCoy secured other counsel,
id., at
458. With trial set to start two days later, the court refused to
relieve English and directed that he remain as counsel of record.
Id., at 461. “[Y]ou are the attorney,” the court told
English when he expressed disagreement with McCoy’s wish to put on
a defense case, and “you have to make the trial decision of what
you’re going to proceed with.”
Id., at 469.
At the beginning of his opening statement at the
guilt phase of the trial, English told the jury there was “no way
reasonably possible” that they could hear the prosecution’s
evidence and reach “any other conclusion than Robert McCoy was the
cause of these individuals’ death.”
Id., at 504. McCoy
protested; out of earshot of the jury, McCoy told the court that
English was “selling [him] out” by maintaining that McCoy “murdered
[his] family.”
Id., at 505–506. The trial court reiterated
that English was “representing” McCoy and told McCoy that the court
would not permit “any other outbursts.”
Id., at 506.
Continuing his opening statement, English told the jury the
evidence is “unambiguous,” “my client committed three murders.”
Id., at 509. McCoy testified in his own defense, maintaining
his innocence and pressing an alibi difficult to fathom. In his
closing argument, English reiterated that McCoy was the killer. On
that issue, English told the jury that he “took [the] burden off of
[the prosecutor].”
Id., at 647. The jury then returned a
unanimous verdict of guilty of first-degree murder on all three
counts. At the penalty phase, English again conceded “Robert McCoy
committed these crimes,”
id., at 751, but urged mercy in
view of McCoy’s “serious mental and emotional issues,”
id.,
at 755. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully
moved for a new trial, arguing that the trial court violated his
constitutional rights by allowing English to concede McCoy
“committed three murders,”
id., at 509, over McCoy’s
objection. The Louisiana Supreme Court affirmed the trial court’s
ruling that defense counsel had authority so to concede guilt,
despite the defendant’s opposition to any admission of guilt. See
2014–1449 (La. 10/19/16), 218 So. 3d 535. The concession was
permissible, the court concluded, because counsel reasonably
believed that admitting guilt afforded McCoy the best chance to
avoid a death sentence.
We granted certiorari in view of a division of
opinion among state courts of last resort on the question whether
it is unconstitutional to allow defense counsel to concede guilt
over the defendant’s intransigent and unambiguous objection. 582
U. S. ___ (2017). Compare with the instant case,
e.g.,
Cooke v.
State, 977 A. 2d 803, 842–846 (Del. 2009)
(counsel’s pursuit of a “guilty but mentally ill” verdict over
defendant’s “vociferous and repeated protestations” of innocence
violated defendant’s “constitutional right to make the fundamental
decisions regarding his case”);
State v.
Carter, 270
Kan. 426, 440, 14 P. 3d 1138, 1148 (2000) (counsel’s admission
of client’s involvement in murder when client adamantly maintained
his innocence contravened Sixth Amendment right to counsel and due
process right to a fair trial).
II
A
The Sixth Amendment guarantees to each
criminal defendant “the Assistance of Counsel for his defence.” At
common law, self-representation was the norm. See
Fa- retta
v.
California, 422 U. S. 806, 823 (1975) (citing 1 F.
Pollock & F. Maitland, The History of English Law 211 (2d ed.
1909)). As the laws of England and the American Colonies developed,
providing for a right to counsel in criminal cases,
self-representation remained common and the right to proceed
without counsel was recognized.
Faretta, 422 U. S., at
824–828. Even now, when most defendants choose to be represented by
counsel, see,
e.g., Goldschmidt & Stemen, Patterns and
Trends in Federal
Pro Se Defense, 1996–2011: An
Exploratory Study, 8 Fed. Cts. L. Rev. 81, 91 (2015) (0.2% of
federal felony defendants proceeded
pro se), an accused
may insist upon representing herself—however counterproductive that
course may be, see
Faretta, 422 U. S., at 834. As this
Court explained, “[t]he right to defend is personal,” and a
defendant’s choice in exercising that right “must be honored out of
‘that respect for the individual which is the lifeblood of the
law.’ ”
Ibid. (quoting
Illinois v.
Allen,
397 U. S. 337, 350–351 (1970) (Brennan, J., concurring)); see
McKaskle v.
Wiggins, 465 U. S. 168, 176–177
(1984) (“The right to appear
pro se exists to affirm
the dignity and autonomy of the accused.”).
The choice is not all or nothing: To gain
assistance, a defendant need not surrender control entirely to
counsel. For the Sixth Amendment, in “grant[ing] to the accused
personally the right to make his defense,” “speaks of the
‘assistance’ of counsel, and an assistant, however expert, is still
an assistant.”
Faretta, 422 U. S.
, at 819–820;
see
Gannett Co. v.
DePasquale, 443 U. S. 368,
382, n. 10 (1979) (the Sixth Amendment “contemplat[es] a norm
in which the accused, and not a lawyer, is master of his own
defense”). Trial management is the lawyer’s province: Counsel
provides his or her assistance by making decisions such as “what
arguments to pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evidence.”
Gonzalez v.
United States, 553 U. S. 242, 248
(2008) (internal quotation marks and citations omitted). Some
decisions, however, are reserved for the client—notably, whether to
plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal. See
Jones v.
Barnes, 463
U. S. 745, 751 (1983).
Autonomy to decide that the objective of the
defense is to assert innocence belongs in this latter category.
Just as a defendant may steadfastly refuse to plead guilty in the
face of overwhelming evidence against her, or reject the assistance
of legal counsel despite the defendant’s own inexperience and lack
of professional qualifications, so may she insist on maintaining
her innocence at the guilt phase of a capital trial. These are not
strategic choices about how best to
achieve a client’s
objectives; they are choices about what the client’s objectives in
fact
are. See
Weaver v.
Massachusetts, 582
U. S. ___, ___ (2017) (slip op., at 6) (2017)
(self-representation will often increase the likelihood of an
unfavorable outcome but “is based on the fundamental legal
principle that a defendant must be allowed to make his own choices
about the proper way to protect his own liberty”);
Martinez
v.
Court of Appeal of Cal., Fourth Appellate Dist., 528
U. S. 152, 165 (2000) (Scalia, J., concurring in judgment)
(“Our system of laws generally presumes that the criminal
defendant, after being fully informed, knows his own best interests
and does not need them dictated by the State.”).
Counsel may reasonably assess a concession of
guilt as best suited to avoiding the death penalty, as English did
in this case. But the client may not share that objective. 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 death for any hope, however
small, of exoneration. See Tr. of Oral Arg. 21–22 (it is for the
defendant to make the value judgment whether “to take a minuscule
chance of not being convicted and spending a life
in . . . prison”); Hashimoto, Resurrecting Autonomy:
The Criminal Defendant’s Right to Control the Case, 90 B. U.
L. Rev. 1147, 1178 (2010) (for some defendants, “the
possibility of an acquittal, even if remote, may be more valuable
than the difference between a life and a death sentence”); cf.
Jae Lee v.
United States, 582 U. S. ___,
___ (2017) (slip op., at 12) (recognizing that a defendant might
reject a plea and prefer “taking a chance at trial” despite
“[a]lmost certai[n]” conviction (emphasis deleted)). When a client
expressly asserts that the objective of “
his defence” is to
maintain innocence of the charged criminal acts, his lawyer must
abide by that objective and may not override it by conceding guilt.
U. S. Const., Amdt. 6 (emphasis added); see ABA Model Rule of
Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a
client’s decisions concerning the objectives of the
representation”).
Preserving for the defendant the ability to
decide whether to maintain his innocence should not displace
counsel’s, or the court’s, respective trial management roles. See
Gonzalez, 553 U. S., at 249 (“[n]umerous choices
affecting conduct of the trial” do not require client consent,
including “the objections to make, the witnesses to call, and the
arguments to advance”); cf.
post, at 8–9. Counsel, in any
case, must still develop a trial strategy and discuss it with her
client, see
Nixon, 543 U. S., at 178, explaining why,
in her view, conceding guilt would be the best option. In this
case, the court had determined that McCoy was competent to stand
trial,
i.e., that McCoy had “sufficient present ability to
consult with his lawyer with a reason- able degree of rational
understanding.”
Godinez v.
Moran, 509 U. S. 389,
396 (1993) (quoting
Dusky v.
United States, 362
U. S. 402 (1960) (
per curiam)).[
3] If, after consultations with English
concerning the management of the defense, McCoy disagreed with
English’s proposal to concede McCoy committed three murders, it was
not open to English to override McCoy’s objection. English could
not interfere with McCoy’s telling the jury “I was not the
murderer,” although counsel could, if consistent with providing
effective assistance, focus his own collaboration on urging that
McCoy’s mental state weighed against conviction. See Tr. of Oral
Arg. 21–23.
B
Florida v.
Nixon, see
supra, at 1–2, is not to the con- trary. Nixon’s attorney
did not negate Nixon’s autonomy by overriding Nixon’s desired
defense objective, for Nixon never asserted any such objective.
Nixon “was generally unresponsive” during discussions of trial
strategy, and “never verbally approved or protested” counsel’s
proposed approach. 543 U. S., at 181. Nixon complained about
the admission of his guilt only after trial.
Id., at 185.
McCoy, in contrast, opposed English’s assertion of his guilt at
every opportunity, before and during trial, both in conference with
his lawyer and in open court. See App. 286–287, 456, 505–506. See
also
Cooke, 977 A. 2d, at 847 (distinguishing
Nixon because, “[i]n stark contrast to the defendant’s
silence in that case, Cooke repeatedly objected to his counsel’s
objective of obtaining a verdict of guilty but mentally ill, and
asserted his factual innocence consistent with his plea of not
guilty”). If a client declines to participate in his defense, then
an attorney may permissibly guide the defense pursuant to the
strategy she believes to be in the defendant’s best interest.
Presented with express statements of the client’s will to maintain
innocence, however, counsel may not steer the ship the other way.
See
Gonzalez, 553 U. S., at 254 (Scalia, J., concurring
in judgment) (“[A]ction taken by counsel over his client’s
objection . . . ha[s] the effect of revoking [counsel’s]
agency with respect to the action in question.”).
The Louisiana Supreme Court concluded that
English’s refusal to maintain McCoy’s innocence was necessitated by
Louisiana Rule of Professional Conduct 1.2(d) (2017), which
provides that “[a] lawyer shall not counsel a client to engage, or
assist a client, in conduct that the lawyer knows is criminal or
fraudulent.” 218 So. 3d, at 564. Presenting McCoy’s alibi defense,
the court said, would put English in an “ethical conundrum,”
implicating English in perjury.
Id., at 565 (citing
Nix v.
Whiteside, 475 U. S. 157, 173–176
(1986)). But McCoy’s case does not resemble
Nix, where the
defendant told his lawyer that he intended to commit perjury. There
was no such avowed perjury here. Cf. ABA Model Rule of Professional
Conduct 3.3, Comment 8 (“The prohibition against offering false
evidence only applies if the lawyer knows that the evidence is
false.”). English harbored no doubt that McCoy believed what he was
saying, see App. 285–286; English simply disbelieved McCoy’s
account in view of the prosecution’s evidence. English’s express
motivation for conceding guilt was not to avoid suborning perjury,
but to try to build credibility with the jury, and thus obtain a
sentence lesser than death.
Id., at 287. Louisiana’s ethical
rules might have stopped English from presenting McCoy’s alibi
evidence if English knew perjury was involved. But Louisiana has
identified no ethical rule requiring English to admit McCoy’s guilt
over McCoy’s objection. See 3 W. LaFave, J. Israel, N. King, &
O. Kerr, Criminal Procedure §11.6(c), p. 935 (4th ed. 2015) (“A
lawyer is not placed in a professionally embarrassing position when
he is reluc- tantly required . . . to go to trial in a
weak case, since that decision is clearly attributed to his
client.”).
The dissent describes the conflict between
English and McCoy as “rare” and “unlikely to recur.”
Post,
at 2, 5–7, and n. 2. Yet the Louisiana Supreme Court parted
ways with three other State Supreme Courts that have addressed this
conflict in the past twenty years.
People v.
Bergerud, 223 P. 3d 686, 691 (Colo. 2010) (“Although
defense counsel is free to develop defense theories based on
reasonable assessments of the evidence, as guided by her
professional judgment, she cannot usurp those fundamental choices
given directly to criminal defendants by the United States and the
Colorado Constitutions.”);
Cooke, 977 A. 2d 803 (Del.
2009);
Carter, 270 Kan. 426, 14 P. 3d 1138 (2000). In
each of the three cases, as here, the defendant repeatedly and
adamantly insisted on maintaining his factual innocence despite
counsel’s preferred course: concession of the defendant’s
commission of criminal acts and pursuit of diminished capacity,
mental illness, or lack of premeditation defenses. See
Bergerud, 223 P. 3d, at 690–691;
Cooke, 977
A. 2d, at 814;
Carter, 270 Kan., at 429, 14 P. 3d,
at 1141. These were not strategic disputes about whether to concede
an element of a charged offense, cf.
post, at 8; they were
intractable disagreements about the fundamental objective of the
defendant’s representation. For McCoy, that objective was to
maintain “I did not kill the members of my family.” Tr. of Oral
Arg. 26. In this stark scenario, we agree with the majority of
state courts of last resort that counsel may not admit her client’s
guilt of a charged crime over the client’s intransigent objection
to that admission.
III
Because a client’s autonomy, not counsel’s
competence, is in issue, we do not apply our
ineffective-assistance-of-counsel jurisprudence,
Strickland
v.
Washington, 466 U. S. 668 (1984), or
United
States v.
Cronic, 466 U. S. 648 (1984), to McCoy’s
claim. See Brief for Petitioner 43–48; Brief for Respondent 46–52.
To gain redress for attorney error, a defendant ordinarily must
show prejudice. See
Strickland, 466 U. S., at 692.
Here, however, the violation of McCoy’s protected autonomy right
was complete when the court allowed counsel to usurp control of an
issue within McCoy’s sole prerogative.
Violation of a defendant’s Sixth
Amendment-secured autonomy ranks as error of the kind our decisions
have called “structural”; when present, such an error is not
subject to harmless-error review. See,
e.g., McKaskle, 465
U. S., at 177, n. 8 (harmless-error analysis is
inapplicable to deprivations of the self-representation right,
because “[t]he right is either respected or denied; its deprivation
cannot be harmless”);
United States v.
Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (choice of
counsel is structural);
Waller v.
Georgia, 467
U. S. 39, 49–50 (1984) (public trial is structural).
Structural error “affect[s] the framework within which the trial
proceeds,” as distinguished from a lapse or flaw that is “simply an
error in the trial process itself.”
Arizona v.
Fulminante, 499 U. S. 279, 310 (1991). An error may be
ranked structural, we have explained, “if the right at issue is not
designed to protect the defendant from erroneous conviction but
instead protects some other interest,” such as “the fundamental
legal principle that a defendant must be allowed to make his own
choices about the proper way to protect his own liberty.”
Weaver, 582 U. S., at ___ (slip op., at 6) (citing
Faretta, 422 U. S., at 834). An error might also count
as structural when its effects are too hard to measure, as is true
of the right to counsel of choice, or where the error will
inevitably signal fundamental unfairness, as we have said of a
judge’s failure to tell the jury that it may not convict unless it
finds the defendant’s guilt beyond a reasonable doubt. 582
U. S., at ___–___ (slip op., at 6–7) (citing
Gonzalez-Lopez, 548 U. S., at 149, n. 4, and
Sullivan v.
Louisiana, 508 U. S. 275, 279
(1993))
.
Under at least the first two rationales,
counsel’s admission of a client’s guilt over the client’s express
objection is error structural in kind. See
Cooke, 977
A. 2d, at 849 (“Counsel’s override negated Cooke’s decisions
regarding his constitutional rights, and created a structural
defect in the proceedings as a whole.”). Such an admission blocks
the defendant’s right to make the fundamental choices about his own
defense. And the effects of the admission would be immeasurable,
because a jury would almost certainly be swayed by a lawyer’s
concession of his client’s guilt. McCoy must therefore be accorded
a new trial without any need first to show prejudice.[
4]
* * *
Larry English was placed in a difficult
position; he had an unruly client and faced a strong government
case. He reasonably thought the objective of his representation
should be avoidance of the death penalty. But McCoy insistently
maintained: “I did not murder my family.” App. 506. Once he
communicated that to court and counsel, strenuously objecting to
English’s proposed strategy, a concession of guilt should have been
off the table. The trial court’s allowance of English’s admission
of McCoy’s guilt despite McCoy’s insistent objections was
incompatible with the Sixth Amendment. Because the error was
structural, a new trial is the required corrective.
For the reasons stated, the judgment of the
Louisiana Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
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