Criminal Defense Attorneys and Their Clients: Who is in Charge?

To those who may not often read these missives or do not know me, I am a criminal defense lawyer in Atlanta, Georgia who specializes in federal criminal defense and criminal appeals.  This is me: paulkish-4-300x200

Many people who do this kind of work find themselves representing clients who look at the criminal case differently than their own lawyer.  Such differences of opinion lead to the interesting constitutional question of who is in charge of the defense, and what decisions are reserved for the lawyer and which ones are exclusively reserved for the client.  The United States Supreme Court recently issued the opinion in McCoy v. Louisiana, which partly answers a few of these questions.   This decision reminds lawyers that our Constitution means that a criminal Defendant possesses the fundamental right to make decisions about his defense and prevents a defense lawyer from going against his client’s instructions.  This rule holds true even  when the attorney’s  strategy seems to be right on the money.

Robert McCoy was charged with killing his estranged wife’s son, mother and stepfather.  Prosecutors decided to ask for the death penalty.  Mr. McCoy told his defense lawyer that he was innocent and the the local police were framing him because he had revealed the cops were all drug dealers, which sounds a bit far-fetched.  The lawyer, who from all accounts sounds to be an accomplished attorney, looked at the case differently.  The attorney believed the case against the client was “overwhelming”.  A common defense tactic in death penalty defense is to see if the prosecutors will “take death off the table” if the client will plead guilty.  That did not work, and with the trial approaching, the defense lawyer planned on telling the jury that McCoy killed the victims,  hoping that this tactic would convince the jury to sentence McCoy to life in prison, rather than death. The client, McCoy, was furious, but the lawyer did as planned, telling the jury that McCoy was “crazy” and “lives in a fantasy world.” The strategy failed, and the jury found McCoy guilty and sentenced him to death

During the post-conviction process,  Mr. McCoy’s new lawyers claimed that the trial lawyer violated the client’s rights during trial by not following McCoy’s explicit instructions.  The argument won the day in the U.S. Supreme Court, in a decision written by Justice Ruth Bader Ginsburg

According to the majority opinion,  when a Defendant is represented by an attorney, he does not give up all control over his case to the lawyer. The lawyer gets to handle “trial management”, tasks such as deciding what evidence to object to and what arguments to make.  On the other hand, certain decisions are reserved solely for the accused, such as whether to plead guilty or to waive a jury trial.  Justice Ginsburg’s opinion says that the decision to maintain one’s innocence falls within the category of decisions reserved solely for the Defendant.  If the clients says “I did not do it”,  the attorney must follow that instruction and cannot “override it by conceding guilt.”

There is another important part of this ruling, and it deals with what happens when a higher court finds an “error” in a criminal case.  Most of the time, mistakes (or “errors” as we call them) are measured against the harm caused by that same error.  If the error made little impact, the Defendant does not get a new trial.  On the other hand, if the error was harmful, then the Defendant wins and gets some relief.  Over the years, the Supreme Court has carved out some mistakes that are so crucial that appellate courts do not need to even go through with this weighing process.  These are called “structural errors.”  Justice Ginsburg’s opinion says that when the client insisted that the lawyer maintain the Defendant was innocent, the lawyer’s strategy of conceding guilt blocked McCoy’s “right to make the fundamental choices about his own defense.” Her opinion went own to note that “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.”  As a result, this was a called a structural error, meaning the client gets a new trial, without having to show that he was harmed by the lawyer’s strategy.

This opinion is a good reminder for lawyers that cases are about the clients, not about the attorney and his or her feelings or opinions.  I urge other criminal defense lawyers to read this so that we all remember that our clients are in control of the crucial aspects of their cases.