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Lawyers v. Their Clients

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In a death row appeal soon to come before the US Supreme Court, Robert McCoy will ask whether it is unconstitutional for defence counsel to tell a jury that his client is guilty, in defiance of the accused’s express instructions that he is innocent. McCoy’s lawyer did this in his 2011 murder trial in Louisiana, in a misguided attempt to get his client life imprisonment instead of the death penalty. The lawyer had rejected the opinions of psychiatrists who had found McCoy fit for trial, believing that he was insane and delusional, and that the only way to save his life was to tell the jury he had committed the three murders with which he was charged, in the hope of leniency. The jury promptly convicted McCoy of first-degree murder, and he was sentenced to death.

Until 1836, persons accused of felonies (more serious crimes) in England had no right to be represented at their trial (though some were, if they could pay for an advocate and persuade an accommodating judge). The rationale was given by William Hawkins, an early 18th-century authority on criminal law:

It requires no manner of Skill to make a plain and honest Defence, which … is always the best; the Simplicity and Innocence, artless and ingenuous Behaviour of one whose Conscience acquits him, having something in it more moving and convincing than the highest Eloquence of a Person speaking in a cause not their own.

In the United States, criminal defendants gained a right to trial counsel in 1789, with the Sixth Amendment to the Constitution, the interpretation of which is at issue in McCoy’s case. The Originalists among the Supreme Court justices may want to know how things stood in England at that time. They must decide how far the lawyer can go without or in spite of the client’s express instruction.

The way the Supreme Court rules in McCoy v. Louisiana may have implications for Donald Trump and his attorney John Dowd, who claimed authorship of the tweet that appeared to fix the president with far more knowledge of the former national security adviser Michael Flynn’s misdeeds than he had previously admitted. Trump is not (yet) on trial, and he hastily disavowed the tweet. It’s hard to tell how much trouble it will get either Trump or Dowd into, but part of the answer may come from a man on death row in Louisiana.


  1. artemesia says:

    The constitutional issue in McCoy v. Louisiana is the defendant’s sixth amendment right to put a defence. He alleges his right was shredded when his lawyer disobeyed his express instruction that he was innocent of the charges and, instead, told the jury he was guilty. I hope that McCoy prevails.

    The rights afforded by the sixth amendment are triggered upon the commencement of a prosecution – whether it be by formal charge, preliminary hearing, arraignment or indictment.

    Trump has not been charged, there is no indictment. At this stage what exists is an ongoing investigation. It follows that respecting the tweet, the sixth amendment is not implicated for Trump. The tweet may raise arguments by attorneys about whether it is admissible, relevant evidence to be put before a jury. But that is for the future, should Trump be charged with a criminal offence, and those arguments will not rest upon the sixth amendment.

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