__ U.S. __
138 S.Ct. 1500, 200 L.Ed.2d 821, 86 U.S.L.W. 4271, 27 Fla.L.Weekly Fed. S 244
Robert Leroy MCCOY, Petitioner
United States Supreme Court
May 14, 2018
Jan. 17, 2018.
S.Ct. 1503] Syllabus [*]
Robert McCoy was charged with murdering his estranged wifes
mother, stepfather, and son. McCoy pleaded not guilty to
first-degree murder, insisting that he was out of State at
the time of the killings and that corrupt police killed the
victims when a drug deal went wrong. Although he vociferously
insisted on his innocence and adamantly objected to any
admission of guilt, the trial court permitted his counsel,
Larry English, to tell the jury, during the trials guilt
phase, McCoy "committed [the] three murders."
Englishs strategy was to concede that McCoy committed the
murders, but argue that McCoys mental state prevented him
from forming the specific intent necessary for a first-degree
murder conviction. Over McCoys repeated objection, English
told the jury McCoy was the killer and that English
"took [the] burden off of [the prosecutor]" on that
issue. McCoy testified in his own defense, maintaining his
innocence and pressing an alibi difficult to fathom. The jury
found him guilty of all three first-degree murder counts. At
the penalty phase, English again conceded McCoys guilt, but
urged mercy in view of McCoys mental and emotional issues.
The jury returned three death verdicts. Represented by new
counsel, McCoy unsuccessfully sought a new trial. The
Louisiana Supreme Court affirmed the trial courts ruling
that English had authority to concede guilt, despite McCoys
: The Sixth Amendment guarantees a defendant the right to
choose the objective of his defense and to insist that his
counsel refrain from admitting guilt, even when counsels
experienced-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty. Pp.
1507 - 1512.
Sixth Amendment guarantees to each criminal defendant
"the Assistance of Counsel for his defence." The
defendant does 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 v.
California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 45
L.Ed.2d 562. The lawyers province is trial management, but
some decisions are reserved for the client— including
whether to plead guilty, waive the right to a jury trial,
testify in ones own behalf, and forgo an appeal. Autonomy to
decide that the objective of the defense is to assert
innocence belongs in this reserved-for-the-client category.
Refusing to plead guilty in the face of overwhelming evidence
against her, rejecting the assistance of counsel, and
insisting on maintaining her innocence at the guilt phase of
a capital trial are not strategic choices; they are decisions
about what the defendants objectives in fact are .
See Weaver v. Massachusetts, 582 U.S. __, __, 137
S.Ct. 1899, 1908, 198 L.Ed.2d 420. Counsel may reasonably
assess a concession of guilt as best suited to avoiding the
death penalty, as English did here. [138 S.Ct. 1504] But the
client may not share that objective. He may wish to avoid,
above all else, the opprobrium attending admission that 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. Thus, when
a client makes it plain that the objective of "his
defence" is to maintain innocence of the charged
criminal acts and pursue an acquittal, his lawyer must abide
by that objective and may not override it by conceding guilt.
Pp. 1507 - 1509.
Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160
L.Ed.2d 565, is not to the contrary. Nixons attorney did not
negate Nixons autonomy by overriding Nixons desired defense
objective, for Nixon "was generally unresponsive"
during discussions of trial strategy and "never verbally
approved or protested" counsels proposed approach.
Id., at 181, 125 S.Ct. 551. He complained about
counsels admission of his guilt only after trial.
Id., at 185, 125 S.Ct. 551. McCoy, in contrast,
opposed Englishs assertion of his guilt at every
opportunity, before and during trial, both in conference with
his lawyer and in open court. Citing Nix v.
Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123,
the Louisiana Supreme Court concluded that Englishs refusal
to maintain McCoys innocence was necessitated by a Louisiana
Rule of Professional Conduct that prohibits counsel from
suborning perjury. But in Nix, the defendant told
his lawyer that he intended to commit perjury. Here, there
was no avowed perjury. English harbored no doubt that McCoy
believed what he was saying; English simply disbelieved that
account in view of the prosecutions evidence. Louisianas
ethical rules might have stopped English from presenting
McCoys alibi evidence if English knew perjury was involved,
but Louisiana has identified no ethical rule requiring
English to admit McCoys guilt over McCoys objection. Pp.
1509 - 1511.
Courts ineffective-assistance-of-counsel jurisprudence, see
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674, does not apply here, where the clients
autonomy, not counsels competence, is in issue. To gain
redress for attorney error, a defendant ordinarily must show
prejudice. See id., at 692, 104 S.Ct. 2052. But
here, the violation of McCoys protected autonomy right was
complete when the court allowed counsel to usurp control of
an issue within McCoys sole prerogative. Violation of a
defendants Sixth Amendment-secured autonomy has been ranked
"structural" error; when present, such an error is
not subject to harmless-error review. See, e.g.,
McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8, 104
S.Ct. 944, 79 L.Ed.2d 122; United States v.
Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165
L.Ed.2d 409; Waller v. Georgia, 467 U.S. 39, 104
S.Ct. 2210, 81 L.Ed.2d 31. An error is structural if it is
not designed to protect defendants 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 __, 137
S.Ct., at 1908 (citing Faretta, 422 U.S., at 834, 95
S.Ct. 2525). Counsels admission of a clients guilt over the
clients express objection is error structural in kind, for
it blocks the defendants right to make a fundamental choice
about his own defense. See Weaver, 582 U.S., at __,
137 S.Ct. 1899. McCoy must therefore be accorded a new trial
without any need first to show prejudice. Pp. 1510 - 1511.
(La.10/19/16), 218 So.3d 535, reversed and remanded.
J., delivered the opinion of the Court, in which ROBERTS,
C.J., [138 S.Ct. 1505] and KENNEDY, BREYER, SOTOMAYOR, and
KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in
which THOMAS and GORSUCH, JJ., joined.
Waxman, Washington, DC, for Petitioner.
Elizabeth Murrill, Solicitor General, for Respondent.
Bourke, Joe Vigneri, New Orleans, LA, Meghan Shapiro,
Alexandria, VA, Alan E. Schoenfeld, Michael D. Gottesman,
Wilmer Cutler Pickering, Hale and Dorr LLP, New York, NY,
Seth P. Waxman, Danielle Spinelli, Catherine M.A. Carroll,
David Lehn, Jonathan A. Bressler, Samuel M. Strongin, Wilmer
Cutler Pickering, Hale and Dorr LLP, Washington, DC, for
Schuyler Marvin, District Attorney, Office of the District
Attorney, Benton, LA, Jeff Landry, Louisiana Attorney
General, Elizabeth B. Murrill, Solicitor General, Colin
Clark, Deputy Solicitor General, Andrea Barient, Assistant
Attorney General, Office of the Attorney General, Louisiana
Department of Justice, Baton Rouge, LA, for Respondent.
Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160
L.Ed.2d 565 (2004), this Court considered whether the
Constitution bars defense counsel from conceding a capital
defendants guilt at trial "when [the] defendant,
informed by counsel, neither consents nor objects,"
id., at 178, 125 S.Ct. 551. 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, 125 S.Ct. 551. We
held that when counsel confers with the defendant and the
defendant remains silent, neither approving nor protesting
counsels proposed concession strategy, id., at 181,