U.S. Supreme Court in Washington, D.C. U.S. Supreme Court in Washington, D.C.

Robert McCoy repeatedly told his lawyer that he was innocent of the murders of the mother, stepfather and son of his estranged wife, and yet defense counsel told the jury “[T]here is no way reasonably possible that you can listen to the evidence in this case and not come to any other conclusion than Robert McCoy was the cause of these individuals’ deaths.” McCoy was convicted and sentenced to death. Now the Supreme Court must decide whether it is unconstitutional for defense counsel to concede a client’s guilt over his express objection.

On the face of it, most people, lawyers and non-lawyers alike, will see this as an easy call. Surely, a lawyer cannot tell the jury his client is guilty when his client has told him, indeed has insisted, that he is innocent.

Actually, the issue is thornier and even more important than it appears. Ultimately, the case is about the allocation of decision-making authority between lawyers and clients. The critical issue of who has the power to make certain decisions extends beyond capital cases and the question of conceding guilt. There are countless decisions to be made in the course of a criminal case. What happens when the client wants the lawyer to call an alibi witness but the lawyer disagrees, or when the client and lawyer cannot agree about the best defense theory, which jurors to select, which motions to file, or which objections to raise? Does, or should, it matter if the client expressly objects to counsel’s chosen path?

Thirty-five years ago, the Supreme Court distinguished between fundamental decisions reserved for the accused and tactical or strategic decisions that were ceded to defense counsel and could be made without the defendant’s knowledge or consent. Although the court stated that it was “recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his own behalf, or take an appeal,” the court failed to explain to whom or how this was recognized or what made only those particular decisions fundamental. Still today there is no explanation for how or why the vaunted four—whether to plead, whether to waive a jury, whether to testify at trial, and whether to appeal—came to be singled out as the only decisions reserved for the defendant.

In the capital trial of Joe Elton Nixon, his appointed lawyer clearly and forcefully conceded his client’s guilt: “In this case, there will be no question that Jeannie [sic] Bickner died a horrible, horrible death … . In this case, there won’t be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie [sic] Bickner’s death.”

It became apparent at a post-conviction hearing that although Mr. Nixon had been consulted about the plan, he never expressly consented. The question raised on appeal was whether the lawyer’s concession of guilt was the functional equivalent of a guilty plea, and, as such, a decision reserved for the defendant. Justice Ginsburg, writing for a unanimous court, ruled that counsel was obliged to, and did, consult with his client, but since the concession of guilt was not akin to a guilty plea the lawyer did not need his client’s affirmative, express consent. In other words, it was a strategic decision that was for the lawyer ultimately to make.

McCoy addresses a strikingly similar situation. In each case, defense counsel believed that conceding guilt and thereby maintaining credibility with the jury would increase the chances that the jurors in the penalty phase of the trial would opt for a life sentence instead of death. The essential difference between the cases is that McCoy, unlike Nixon, loudly and clearly expressed his objection to his lawyer’s decision.

At first glance, the court’s decision seems a fait accompli. After all, the Nixon court has already ruled that conceding guilt is a strategic decision for counsel to make, rather than the functional equivalent of a guilty plea for the client to decide. The question becomes whether the accused’s forceful objection to counsel’s strategic decision somehow transforms the decision into a fundamental one to be made by the defendant. Should the court so rule it would be a rare and significant step toward increasing the accused’s decision-making authority, and open the door for those who seek to vest more power with the accused to control his or her case.

On the facts of the McCoy case it is easy, as many have done, to write off McCoy’s lawyer as disloyal or incompetent. But it is far too simplistic to conclude that any lawyer who overrides a client is similarly disloyal or incompetent.

Many lawyers believe that those who abdicate decision-making authority are shirking responsibility. They believe it is too easy for lawyers to absolve themselves of the onerous task of making difficult decisions by saying “Well, it’s the client’s choice.” Would McCoy’s counsel be roundly criticized if he had acceded to McCoy’s wishes and argued his client’s innocence, but McCoy was still found guilty and sentenced to death? Would the lawyer be absolved from criticism merely because he did as his client insisted? And if the maxim is true that “the lawyer who represents himself has a fool for a client,” then is giving the accused decision-making power a variation on that theme? Is someone likely filled with anxiety, fear, frustration, and anger (and typically lacking in legal training) in the best position to make critical legal decisions?

These lawyers seek to use their training and experience to get the results their clients want, and willingly exercise independent professional judgment if they disagree with their clients. They take solace in and ascribe to Justice Harlan’s words from more than 50 years ago: “[A] lawyer may properly make a tactical determination of how to run a trial even in the face of his client’s incomprehension or even explicit disapproval.”

Other lawyers rebel against this view of counsel’s role. They argue it is grounded in paternalism and populated by lawyers with huge egos and inflated senses of their abilities. They believe these lawyers subjugate their clients, who are often poor and people of color. Instead, they believe the lawyer’s role is to be client-centered, which they define as imbuing clients with agency, authority and autonomy. After all, who bears the consequences of a conviction and sentence?

The difference between the two views of counsel’s role was perhaps best captured by the Fifth Circuit in Wright v. Estelle, a 1978 case that wrestled with the question whether it was constitutional error for defense counsel to override his client’s expressed desire to testify. According to the majority, counsel was the ultimate decision-maker since “there is no constitutional requirement that a court-appointed attorney must walk his client to the electric chair.” The dissent, on the other hand, argued that “[T]he wisdom or unwisdom of the defendant’s choice does not diminish his right to make it. The lawyer’s authority is vindicated when he advises his client.”

The “who decides” debate must acknowledge that the majority of criminal defendants are unable to afford private counsel. Most publicly appointed lawyers don’t look like their clients or come from similar backgrounds. How should differences between lawyers and clients with respect to race, ethnicity, language, etc., affect who gets to make which decisions? There is also the well-documented crisis in indigent defense characterized by lawyers with too many clients and too little resources. How much attention can typical Public Defenders pay to each client to inform their decision making?

The “who decides” question bedevils judges as well as lawyers. During pretrial hearings at Guantanamo Bay in the ongoing prosecution of Khalid Shaikh Mohammad and others accused of planning the 9/11 attacks on the World Trade Center, a defendant sought to terminate his relationship with one of his appointed lawyers. Presiding Judge Colonel James L. Pohl denied that motion but said “the fact that [she] is still a member of your defense team does not mean that you do not have the right to tell her and any other member of your defense team of what you want them to do … ultimately it’s your defense, and in this case it is your life. So, ultimately, you are the decision maker.” Subsequent questions from the attorneys prompted Judge Pohl to opine that the issue was more complicated than he indicated and that “[I]t’s clear from what I’ve been talking about that I don’t necessarily have a clear view.”

In one of the only examples of a Supreme Court Justice reflecting about which decisions are for the lawyer or the accused, Justice Antonin Scalia captured the extant lack of clarity: “I would not adopt the tactical versus fundamental approach, which is vague and derives from nothing more substantial than this court’s say-so … . What makes a right tactical? … Whether a right is ‘fundamental’ is equally mysterious.” McCoy presents an overdue opportunity for the court to finally solve that mystery.

Steven Zeidman is Professor of Law at CUNY School of Law.