The Sixth Amendment says that in all criminal prosecutions, the accused “shall enjoy the right … to have the Assistance of Counsel for his defence.” Like so much of the Bill of Rights, the Founding Fathers didn’t tell us exactly what they had in mind, leaving it up to future generations of Supreme Court justices to interpret the word “assistance.”
In 1961, the State of Florida charged Clarence Gideon with breaking into a poolroom in Panama City. He told the judge he could not afford a lawyer and asked the judge to appoint counsel to represent him. The judge replied that under Florida law he could only grant such a request to someone accused of a capital offense.
Gideon protested. “The Constitution says I am entitled to be represented by counsel.”
As it turned out, he was correct. In the landmark decision Gideon v. Wainwright, the Supreme Court held that the assistance of counsel is a fundamental right. In the words of Justice Hugo Black, “even the intelligent and educated layman … lacks both the skill and knowledge adequately to prepare his defense … . He requires the guiding hand of counsel.” (my italics)
Later cases have expanded this Sixth Amendment right to require not just a lawyer but the “effective” assistance of counsel. Where the lawyer’s performance is so deficient that it falls below a certain level of competence, the client has been denied the right of a fair trial.
Last month the Supreme Court heard the case of McCoy v. Louisiana, which raises the fundamental question of who gets to decide how a case shall be handled – the defendant or the lawyer. The facts are straightforward. The State charged Robert McCoy with killing three members of his wife’s family, and he hired a lawyer to represent him. McCoy insisted he was innocent, despite overwhelming evidence that he had committed the crimes. He told his lawyer he wanted the jury to decide.
The lawyer, an experienced practitioner who had successfully defended many criminal cases, told McCoy he was going a different way. He explained that the case was unwinnable, and said the best strategy would be to admit to the shootings in order to gain credibility with the jury. The lawyer’s goal was to keep his client alive.
McCoy had a different agenda. He protested in court, but the judge said “he’s your lawyer.”
So the lawyer stood up and told the jury, ”Mr. McCoy committed these crimes.”
The strategy failed, and the jury imposed the death sentence. In effect, counsel’s “guiding hand” steered McCoy straight into the executioner’s arms.
The Louisiana Supreme Court upheld the trial judge with these words. “This court does not sit to second guess strategic and tactical choices made by trial counsel.”
At last month’s hearing, the justices engaged in a lively debate with counsel. Justice Kagan posed the dilemma this way: On the one hand, she said, the lawyer was trying to keep his client away from death row. On the other hand, the lawyer was ignoring his client’s paramount goal, which was to have the jury tell the world that he didn’t kill anyone.
Justice Ginsburg then wondered, in her usual insightful way, what became of McCoy’s Fifth Amendment right against self-incrimination? Can a lawyer waive that right over his client’s objection?
Justice Gorsuch zeroed in on the word “assistance,” asking whether a lawyer who overrides his client’s wishes is providing “assistance of counsel” under the Sixth Amendment. The question is overly broad. The answer must be, “It depends on the wish.”
Lawyers often refuse to follow a client’s wishes, for example an instruction ordering the lawyer, “Don’t you give them so much as an extra day” (to file a brief or meet some other deadline). Experienced lawyers know better than to follow such an order. Granting additional time, where the client will suffer no prejudice, is simply a matter of professional courtesy over which the client should have no control. Besides, the lawyer understands that one day the shoe will be on the other foot.
If we consider Justice Gorsuch’s question in this particular case, however, the answer is that the Court should reverse McCoy’s conviction and send the case back to Louisiana for trial. When Clarence Gideon told the judge he had a right to a lawyer, he was not saying that the lawyer could stand up and take away his day in court.
Even a lawyer acting out of conscience, and in the best of good faith, should not be allowed to upend the presumption of innocence, or relieve the state of its burden to prove guilt beyond a reasonable doubt.