<p>The U.S. Supreme Court in Washington.</p>

The U.S. Supreme Court in Washington.

(Susan Walsh / Associated Press)

Lawyers have one fundamental job: to advocate on behalf of their clients. Once I begin advancing a position my client rejects, I’ve stopped being her lawyer and turned into her adversary.

This principle, now at stake in a case pending before the Supreme Court, is a basic building block of our criminal justice system, and the justices should unequivocally reaffirm it when they decide McCoy v. Louisiana later this term.


In 2011, in the guilt phase of his trial, Robert LeRoy McCoy was convicted by a Louisiana jury of murdering his estranged wife’s mother, step-father, and 17-year-old son. In the subsequent penalty phase, the jury voted to sentence Mr. McCoy to death.

The evidence against Mr. McCoy was strong. One of the victims was recorded on a 911 call screaming at “Robert.” A white Kia registered to Mr. McCoy was seen leaving the scene of the crime. The handset of a cordless phone was found in the Kia, separated from its cradle, which remained in the victims’ home. Mr. McCoy was arrested in Idaho after a cross-country manhunt.

Mr. McCoy’s lawyer, Larry English, believed that given the evidence against his client, the only chance he had of saving Mr. McCoy’s life was to concede, in the guilt phase, that Mr. McCoy had committed the murders, and then to plead for mercy in the penalty phase. But Mr. English had one problem: Mr. McCoy maintained his innocence and instructed his lawyer not to concede his guilt to the jury. Nevertheless, over Mr. McCoy’s vigorous objection, Mr. English told the jury in his opening statement that “Mr. McCoy committed these crimes,” and he closed the trial by saying that “no reasonable person could come to any other conclusion than Robert McCoy was the cause of these people’s deaths.”

Perhaps unsurprisingly, Mr. English’s strategy failed. It might have been reasonable. By conceding that Mr. McCoy had committed the murders, Mr. English conceivably could have gained credibility with the jury and thereby improved his client’s chances of avoiding the death penalty. But whether the strategy was defensible is irrelevant because Mr. McCoy’s lawyer committed a fundamental professional error: He advanced a position that his client explicitly rejected. In essence, he stopped being Mr. McCoy’s lawyer.

After Mr. McCoy was sentenced to death, he appealed to the Louisiana Supreme Court, arguing that his Sixth Amendment right to counsel had been denied. As the client, he contended, it was his choice whether to admit the murders or contest his guilt at trial. The Louisiana Supreme Court ruled against Mr. McCoy, finding “no merit” to his claims. “Conceding guilt, in the hope of saving a defendant’s life at the penalty phase, is a reasonable course of action in a case in which evidence of guilt is overwhelming,” the court said.

There is little precedent to guide the Supreme Court’s decision as it weighs whether to overturn the Louisiana ruling. In 2004, the justices decided a similar, but distinguishable case. In Florida v. Nixon, Joe Elton Nixon’s lawyer made the same strategic calculation as Mr. McCoy’s lawyer. He conceded his client’s guilt to try to save Mr. Nixon’s life. The tactic failed, and Mr. Nixon was sentenced to death. He subsequently appealed on Sixth Amendment grounds. Like Mr. McCoy, Mr. Nixon did not approve of his lawyer’s strategy. But unlike Mr. McCoy, Mr. Nixon did not disapprove of it either. He simply took no position. Because Mr. Nixon was silent about whether to concede his guilt, and because the strategy pursued by Mr. Nixon’s lawyer was not unreasonable, the Supreme Court upheld Mr. Nixon’s conviction and death sentence.

Robert LeRoy McCoy may well have murdered his estranged wife’s relatives — Christine Colston Young, Willie Ray Young and Gregory Lee Colston — and he should be held accountable if he’s guilty. But he hasn’t yet gotten a fair trial: Mr. McCoy wanted to put the prosecution to its proof, and Mr. English wasn’t free to simply ignore his client and concede the ultimate issue of guilt to the jury.

The Trump administration is seeking an early verdict on its travel ban for six majority-Muslim countries from a Supreme Court with a renewed conservative majority.

As much as we might like to on occasion, we lawyers don’t get to pick and choose among a client’s positions, arguing only for those with which we agree. Within the bounds of the law and our professional obligations, we must follow our client’s direction on critical issues, and that sometimes means making arguments we think are likely to fail. Why? Because the client is the one who bears the consequences. Only Mr. McCoy, not Mr. English, was facing the death penalty. The ABA model rules of professional conduct recognize that a client is the decision-maker in these circumstances, explicitly stating that in a criminal case a lawyer must abide by his client’s decisions about whether to plead guilty, waive a jury trial, and testify in her own defense.

In our criminal justice system, the process is as important as the outcome. In Mr. McCoy’s case the process failed, so the outcome cannot stand. The Supreme Court should reverse the Louisiana decision, and Mr. McCoy should be retried, represented by someone willing to be his lawyer.

Daniel Suleiman (DSuleiman@cov.com) is a white collar criminal defense partner in Covington & Burling LLP. From 2012-2013, he was deputy chief of staff in the U.S. department of justice’s criminal division.