Pictured, from left, are Justices Neil Gorsuch, Clarence Thomas and Samuel Alito Jr.

Criminal defendants scored a key U.S. Supreme Court victory in a constitutional challenge Monday but with reservations by the court’s most conservative trio.

Justice Ruth Bader Ginsburg, leading a 6-3 majority in McCoy v. Louisiana, concluded that a capital murder defendant’s trial lawyer violated his client’s Sixth Amendment right to determine his defense when he conceded guilt—over the client’s objections—in a triple-homicide prosecution.

“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,” wrote Ginsburg, joined by Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Robert McCoy was convicted and sentenced to death for killing the mother, stepfather and son of his estranged wife. His trial lawyer believed that in view of overwhelming evidence of guilt, a death sentence would be impossible to avoid absent a confession at the guilt stage that McCoy was the killer. McCoy, however, repeatedly told his lawyer not to make that concession and to pursue an acquittal.

The Louisiana Supreme Court’s affirmance of McCoy’s conviction was a “structural” error that requires a new trial for McCoy, according to the majority.

Justice Samuel Alito Jr., in a dissent joined by Justices Clarence Thomas and Neil Gorsuch, accused the court of discovering a new fundamental right “that simply does not apply to the real facts of this case.” Alito said there are difficult questions about what decisions and concessions can be made by defense counsel. But on the “unusual facts” of McCoy’s case, he said, he would affirm the lower court and leave those questions for another day.

McCoy’s high court counsel, Richard Bourke, director of the Louisiana Capital Assistance Center, said in a statement, “Mr. McCoy’s was one of 10 death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw. Mr. McCoy’s case will now, for the first time, be investigated and litigated by a legal team intent on honoring his vehement protestations of innocence, rather than conceding his guilt.”

Gorsuch, Thomas and Alito have found common ground in recent dissents, but it’s still too early to determine how strong an alliance the justices will have this term, if any, in some of the term’s most controversial pending cases. The high court issued five decisions Monday, leaving 34 cases awaiting decision.

In January in Tharpe v. Sellers, Thomas, Gorsuch and Alito dissented from a per curiam opinion that revived a habeas petitioner’s claims involving a racially biased juror. “If bad facts make bad law, then ‘unusual facts’ inspire unusual decisions,” Thomas wrote.

Also in January, in the case Artis v. District of Columbia, the three justices dissented from the majority’s interpretation of the word “tolled” in the supplemental jurisdiction statute in a case stemming from a job discrimination suit.

The three justices in October, in the case Wilson v. Sellers, dissented from a ruling that a federal habeas court—reviewing an unexplained state court decision on the merits—should “look through” that decision to the last related state court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning.

In June, they were the only justices who would have allowed President Donald Trump’s second travel ban executive order to take full effect.

Gorsuch’s alignment with Thomas and Alito is not set in stone by any stretch. The newest justice made headlines in April when he joined the court’s liberal majority in ruling for an immigrant. Gorsuch used his concurring opinion to respond to Thomas.

Concurrences in a Fourth Amendment Case

In a separate ruling Monday, Gorsuch, Thomas and Alito concurred in Kennedy’s opinion in favor of criminal defendants in the case Byrd v. United States. But the three justices raised reservations in separate concurrences about Kennedy’s approach in the Fourth Amendment challenge.

In Byrd, the high court held that someone who is in lawful possession or control of a rental vehicle has a reasonable expectation of privacy even if he or she is not on the rental agreement as an authorized driver.

Terrence Byrd was the only person in a rental car that police pulled over. When troopers learned he was not on the rental agreement, they told Byrd they did not need his consent to search the car, including the trunk. A search revealed 49 bricks of heroin.

“Though new, the fact pattern here continues a well-traveled path in this court’s Fourth Amendment jurisprudence,” Kennedy wrote. “Those cases support the proposition, and the court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The court remanded the case for consideration of two arguments raised by the government: Byrd’s use of the car was obtained fraudulently in order to commit a crime and there was probable cause for the search.

Thomas, joined by Gorsuch, concurred while voicing “serious doubts” about the “reasonable expectation of privacy” test announced in the court’s 1967 decision in Katz v. United States. He also wrote he would welcome briefing and argument in the appropriate case on whether there was a protected property interest in a rental car within the original meaning of the Fourth Amendment. Alito, concurring separately, said the existence of a property right among other questions could be reviewed on remand, which is why he joined the opinion.

Byrd’s lawyer in the Supreme Court, Robert Loeb of Orrick, Herrington & Sutcliffe, said, “The court clearly stated that a rental contract violation does not mean the loss of constitutional rights. Importantly, today’s ruling should stop the unlawful practice of pulling over rental cars with the hopes of engaging in a search of a car without any suspicion of a crime.”


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Justice Ginsburg Scorns ‘History Lesson’ in This Gorsuch Dissent

Neil Gorsuch Loves His ‘Dream Job,’ Ignores the Criticism, Friends Say

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