2017-10-09 10:53:33 UTC
Supreme Court ponders if lawyer can concede client's guilt when accused claims
The lawyer told the Louisiana jury that the state would prove beyond a
reasonable doubt that Robert McCoy had committed a gruesome triple homicide in
2008, murdering the son, mother and stepfather of his estranged wife.
"There 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," said lawyer Larry English.
But here's the twist: English was not the prosecutor in the case. He was
McCoy's defense attorney. And McCoy vehemently proclaimed his innocence.
The Supreme Court last week said it would review McCoy's conviction - he was
subsequently sentenced to death - to answer what sounds more like a typo than a
contested question of law:
Does it violate the Constitution for a defense counsel to concede a client???s
guilt over the accused's express objection?
"It happens more often than you think it would," said Lawrence J. Fox, a
visiting lecturer at Yale Law School who filed a brief on McCoy's behalf for
the Ethics Bureau at Yale.
It occurs mostly in capital cases, Fox said, in which lawyers believe that it
would be impossible to convince a jury that a client is innocent. The theory is
that by creating some trust with jurors, it might be possible to get a
conviction on a lesser murder charge that does not carry the death penalty.
"They think the most important thing is to save the client's life," said Fox.
But that misunderstands the lawyer's role, Fox said.
"The decision over whether to concede guilt at trial is ultimately the
defendant's to make," Fox's brief to the court states. "It goes to the very
heart of the right to put on a defense - a right that personally belongs to the
McCoy's lawyers at the Louisiana Capital Assistance Center said English's
actions - allowed by the trial judge and unanimously upheld by the Louisiana
Supreme Court - did not fulfill the Sixth Amendment's promise that the accused
have "assistance of counsel for his defense."
"It is inconceivable that the Framers intended that the assistance of counsel
should come at the price of defense counsel being authorized to tell the jury
that the accused is guilty, even over the accused's protestations of his own
innocence," the center's Richard Bourke wrote in McCoy's petition to the
There's little doubt that the state had a pretty compelling case against McCoy,
who was looking for his wife, who had gone into protective seclusion after
McCoy had allegedly threatened to kill her and himself.
In a 911 call, McCoy's mother-in-law, Christine Colston Young, could be heard
screaming, "She ain't here, Robert. I don't know where she is. The detectives
have her." A gunshot was then heard on the 911 tape, and the call was
A car later found to be McCoy's was seen leaving the area, and police
discovered in the abandoned vehicle the phone Young had used. Eventually, McCoy
was arrested in Idaho, after hitchhiking rides from truckers. The gun used in
the killings was found with him. In custody, McCoy tried to hang himself.
But he maintained his innocence, alleging a conspiracy among local police to
commit the murders and frame him. His 1st public defender attorney was let go
because of differences between the 2, and then his parents paid English $5,000
to represent their son.
But English, who was not certified in capital cases, was convinced there was no
way to convince a jury that McCoy was telling the truth.
English declined to be interviewed. But when lawyers were attempting to get a
new trial for McCoy, he testified that, "I'm a seasoned criminal trial lawyer,
had been doing this for a number of years, and I had never had a case where the
evidence was so overwhelming against a client."
After English informed McCoy he was going to tell the jury McCoy was guilty,
and McCoy objected, they told Judge Jeff Cox of their disagreement. But Cox
said he was not going to again delay the trial and would not allow McCoy to
replace English or represent himself.
When English made his opening statement to the jury, McCoy again objected.
"Judge Cox, Mr. English is simply selling me out, Judge Cox," McCoy said from
the defense table.
English's strategy did not work, partly because Louisiana does not allow the
kind of limited mental capacity defense that the lawyer pursued. McCoy was
convicted of 1st-degree murder and sentenced to death.
The Louisiana Supreme Court unanimously upheld English's strategy and the trial
"Admitting guilt in an attempt to avoid the imposition of the death penalty
appears to constitute reasonable trial strategy," the court concluded.
(source: Washington Post)
Facing the Death Penalty With a Disloyal Lawyer
2 weeks before Robert McCoy was to be tried for a triple murder, his lawyer
paid him a visit. It was the summer of 2011, and the 2 men met in a holding
cell in a Louisiana courthouse. Mr. McCoy, who was facing the death penalty,
told his lawyer he was innocent.
Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted
to clear his name.
The lawyer, Larry English, said he had a different strategy.
"I met with Robert at the courthouse and explained to him that I intended to
concede that he had killed the 3 victims," Mr. English recalled in a sworn
statement. "Robert was furious and it was a very intense meeting. He told me
not to make that concession, but I told him that I was going to do so."
Capital trials have 2 phases. The first concerns guilt, the other punishment.
Mr. English reasoned that he would forfeit his credibility with the jury if he
contested what he believed was overwhelming evidence against his client in the
trial's 1st phase. He feared the jurors would not listen to him when he begged
them to spare Mr. McCoy's life in the 2nd phase.
Conceding guilt in a capital case is sometimes the right play. Last month, the
Supreme Court agreed to decide whether it is permissible even if the man whose
life is at stake objects.
Mr. McCoy was accused of killing Christine Colston Young, Willie Young and
Gregory Colston, who were the mother, stepfather and son of Mr. McCoy???s
estranged wife. There was substantial evidence that he had done so. There was
also reason to think that Mr. McCoy's belief in his innocence was both earnest
There was no ambiguity in Mr. McCoy's position, Mr. English recalled.
"I know that Robert was completely opposed to me telling the jury that he was
guilty of killing the 3 victims," Mr. English said. "But I believed that this
was the only way to save his life."
After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather
represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned
"Mr. English is your attorney, and he will be representing you," the judge
Mr. McCoy's parents had paid Mr. English $5,000 to defend their son. They had
borrowed the money, using their car as collateral.
In a letter to Judge Cox before the trial, Mr. McCoy's parents said they rued
their decision. Mr. English "is neither prepared nor capable of adequately
representing our son," they wrote. When they tried to discuss the case with Mr.
English, they wrote, he responded with a tirade and "insulted us by talking to
us as if we were children."
During his opening statement at the trial, Mr. English did what he had promised
to do. "I'm telling you," he told the jury, "Mr. McCoy committed these crimes."
Mr. McCoy objected. "Judge Cox," he said, "Mr. English is simply selling me
"I did not murder my family, your honor," Mr. McCoy said. "I had alibis of me
being out of state. Your honor, this is unconstitutional for you to keep an
attorney on my case when this attorney is completely selling me out."
Whatever its wisdom, Mr. English's trial strategy failed. Mr. McCoy was
convicted and sentenced to death. He appealed to the Louisiana Supreme Court,
saying his lawyer had betrayed him. The court ruled against him.
"Given the circumstances of this crime and the overwhelming evidence
incriminating the defendant," the court said, "admitting guilt in an attempt to
avoid the imposition of the death penalty appears to constitute reasonable
The decision relied on a unanimous 2004 ruling from the United States Supreme
Court in Florida v. Nixon, which said lawyers need not obtain their clients'
express consent before conceding guilt in a capital case. But the ruling did
not address whether it was permissible for a lawyer to disregard a client's
explicit instruction to the contrary.
That is the question in the new case, McCoy v. Louisiana, No. 16-8255.
The right answer, Louisiana prosecutors told the justices, is that lawyers may
ignore their clients' wishes. "Counsel's strategic choices should not be
impeded by a rigid blanket rule demanding the defendant's consent," they wrote
in a brief urging the court not to hear the case.
Mr. English declined requests for an interview, saying he would not comment
until after the Supreme Court ruled.
In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school
clinic, said Mr. English had essentially switched sides. "Far from testing the
prosecution's case," the brief said, "Mr. English seemed downright eager to
Mr. McCoy's situation is not particularly unusual, according to a 2nd
supporting brief, this one filed by the Louisiana Association of Criminal
Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. "In
Louisiana," the brief said, "a capital defendant has no right to a lawyer who
will insist on his innocence."
Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers
to concede their clients' guilt in 4 other capital cases over the clients'
The Sixth Amendment guarantees a right to "the assistance of counsel." Those
words, the Supreme Court said in 1975 in Faretta v. California, indicate that
the client is the boss.
"It speaks of the 'assistance' of counsel," Justice Potter Stewart wrote, "and
an assistant, however expert, is still an assistant."
(source: New York Times)
The Sad Death of John Thompson
In November 2011, I had the pleasure of seeing John Thompson - who spent 14
years on death row before he was exonerated 1 month before his scheduled
execution, based on the prosecution's withholding of exculpatory evidence
during trial - speak at King Hall with fellow exoneree Don Diolosa.
He was eventually exonerated but his prosecutors were never punished as, in
March of 2011 the US Supreme Court, in a 5-4 decision, overturned the case that
Mr. Thompson had won against them that would have given him $14 million for his
years on death row.
That decision, handed down by Justice Clarence Thomas who ruled that the
district attorney cannot be held responsible for the single act of a lone
prosecutor, has been called one of the cruelest Supreme Court decisions ever.
Several weeks before he was scheduled to be executed in 1999, Mr. Thompson's
private investigators discovered evidence that the prosecutors had failed to
turn over exculpatory evidence that would have cleared him of his robbery
The strongest evidence was that the blood sample at the crime scene did not
match Mr. Thompson's blood type. It is worse than that, because this was known
to the prosecutors 14 years before and excluded Mr. Thompson as the
perpetrator. But it gets even worse than that, because in order to make sure
the defense did not find out about this evidence, the assistant DA who was
prosecuting the case took the jeans from the police evidence locker and threw
Here is my 2011 write up on John Thompson.
"I remember the police coming to my grandmother's house - we all knew it was
the cops because of how hard they banged on the door before kicking it in. My
grandmother and my mom were there, along with my little brother and sister, my
2 sons - John Jr., 4, and Dedric, 6 - my girlfriend and me. The officers had
guns drawn and were yelling. I guess they thought they were coming for a
murderer. All the children were scared and crying. I was 22."
He continued, "They took me to the homicide division, and played a cassette
tape on which a man I knew named Kevin Freeman accused me of shooting a man. He
had also been arrested as a suspect in the murder. A few weeks earlier he had
sold me a ring and a gun; it turned out that the ring belonged to the victim
and the gun was the murder weapon.
"My picture was on the news, and a man called in to report that I looked like
someone who had recently tried to rob his children. Suddenly I was accused of
that crime, too. I was tried for the robbery first. My lawyers never knew there
was blood evidence at the scene, and I was convicted based on the victims'
"After that, my lawyers thought it was best if I didn't testify at the murder
trial," he said. "So I never defended myself, or got to explain that I got the
ring and the gun from Kevin Freeman. And now that I officially had a history of
violent crime because of the robbery conviction, the prosecutors used it to get
the death penalty."
Eventually both of those convictions would be overturned.
You would think that John Thompson would be bitter about his experience - and
he was. In 2011, he wrote, "The prosecution rests, but I can't."
And this week, at just the age of 55 he died of a heart attack. A sad ending in
a tragic case. We have now seen the toll that wrongful convictions take on
people, as many have died not long after release and all at a premature age.
Radley Balko this week wrote, "The 1st time I interviewed John Thompson, I was
a little taken aback." He said he began the interview asking if anyone had ever
apologized to him, to which Mr. Thompson went off on a rant.
He said: "Tell me what the hell would they be sorry for. They tried to kill me.
To apologize would mean they're admitting the system is broken. That everyone
around them is broken. It's the same motherf---g system that's protecting
them," he said, jabbing his finger into the air for emphasis. He added, "What
would I do with their apology anyway? Sorry. Huh. Sorry you tried to kill me?
Sorry you tried to commit premeditated murder? No. No thank you. I don't need
Mr. Balko writes, "I hadn't expected that. I had interviewed exonerees before,
and I had always been struck by their grace and their unfathomable lack of
bitterness. I still admire that about those particular exonerees. But there's
also something to be said for anger. We admire grace. Anger compels a reaction.
Thompson's anger was righteous. It was unimpeachable. And once you know the
circumstances of his 2 convictions - of what happened before, during and after
his incarceration - it's really the only emotion that makes any sense."
My experiences are very similar - I have met and known a lot of exonerees and
am struck by their grace and forgiveness.
We have covered a lot of cases this week that are flat-out ridiculous. I
reserve a special place for the innocent who are robbed of their freedom and
years of their lives. I think of my friend Ajay Dev frequently, as I look at
our photo that hangs above my desk. But there is plenty of injustice to spare
beyond just wrongful convictions.
As Mr. Balko argues, there is something to be said for anger. "We need more
people to be as angry as John Thompson was."
I've always been surprised at the lack of anger that people have when they get
exonerated - especially in cases with prosecutorial misconduct and cover ups.
Think where you were 18 years ago today and now imagine having that life
experience erased and having to spend that time in prison while completely
innocent of the crime you were convicted of.
John Thompson's case was bad because of the level of corruption, but far from
the worst. Think about Ricky Jackson, who in 2015 was exonerated after 40 years
in prison for a murder he did not commit. He was 18 when convicted of the
The witness who put him in jail said in 2013 "that police detectives threatened
to put his parents in jail and coerced him into implicating Jackson and
brothers Wiley and Ronnie Bridgeman in the slaying of salesman Harold Franks
outside a corner store."
A lawsuit alleges that 8 officers, including detectives and their supervisors,
were involved in framing the 3. Can you imagine - you go to prison at age 18
and are released at 57? That's your life.
Maybe more people need to be angry over this injustice.
(source: David Greenwald, Commentary; Davis Vanguard)
Community mourns lives of children lost in triple homicide
People gathered in West Sacramento Saturday to mourn the lives of 3 children,
who were killed last month - allegedly at the hands of their own father.
That man, Robert Hodges, faces 3 counts of murder and 1 count of attempted
murder, for an alleged attack on his wife. He could face the death penalty, if
Yolo County prosecutors seek it. He's due back in court for a hearing later
The kids' mother spoke at Saturday's memorial, held at River Cities Funeral
Since she is an alleged victim of domestic abuse, ABC10 is not naming her.
"I will never stop missing them," she said, through tears.
Her children were Kelvin, who was 11 at the time of his death; Julie, 9 and
baby Lucas, who was almost 8 months old.
Their mother reflected on each of them.
"Kelvin and his huge, beautiful smile...and cheerful nature," she said.
"Julie and her laughter. Her sweet, social personality," their mother said.
"The way she walked through her school and know everybody by name."
"And little Lucas, my happy baby, whose giggles I can still hear and whose hand
I can still feel on my face," she said. "Their spirits live in me, in all of
us, and I know God has a plan for us all."
Other community members spoke at the memorial service, including Quirina
Orozco, who is a West Sacramento city councilmember and deputy district
attorney with the Sacramento District Attorney's Office.
"On September 13, 2017, 3 beautiful - vibrant lights - were dimmed in our
community. On that day, a magnificent glory departed our city, and we have not
been the same since," Orozco said.
Jackie Thu-Huong Wong, a trustee with the Washington Unified School District,
said, "Kelvin, Julie and baby Lucas will forever have a special place in our
community and our hearts."
Speakers assured the children's mother that she has support and love.
"Though the burden is experienced most with you, you share it not alone and are
not meant to bear it alone from this day forward," Southport Church lead pastor
Micah Moreno told her.
"I just want you to know that we will not forget," Orozco said. "This is our
community. We are your family."
A GoFundMe site for the kids' mother has already raised more than $36,000.
(source: ABC News)
Death penalty: Washington should abolish unjust practice
Do you know capital punishment has been discussed for many years yet this
inhumane, barbaric action still exists? And that it came before the Washington
Legislature this session but, disappointingly, never passed committee despite
encouragement by Gov. Jay Inslee and Attorney General Bob Ferguson?
Do you know the death penalty dehumanizes us, encourages violence and is
arbitrarily unjust? Do we want to stand with China, Saudi Arabia, Iran and
other rogue nations in condoning the murder of human beings?
Do you know capital punishment does not deter crime nor does it lower
recidivism? Scientific studies have consistently failed to demonstrate that
it's a deterrent.
Do you know Innocent people have been put to death? When Inslee placed a
moratorium on executions in 2014, he asked for public conversation. When he
leaves office, the moratorium could be rescinded.
Do you know that when the "state" kills, we are participants? Would you choose
to be the person that snuffs out a human life?
Let's keep the conversation going. Let's join other civilized nations that have
abolished the death penalty. For more information visit the Fellowship of
Reconciliation web site, www.olympiafor.org.
(source: Sandra Ware--Letter to the Editor, The News Tribune)
New report details Florida airport shooting that killed 5----Passengers at all
the airport's terminals fled in a panic over erroneous reports of another
A 30-page report released by a sheriff???s office in the aftermath of a mass
shooting at a Florida airport details how an Alaska man waited at a baggage
carousel for several minutes last January before being paged to pick up the bag
containing his gun, which officials said he used to kill 5 people and injure 6
Delta Airlines was paging Esteban Santiago, 27, to retrieve the bag after his
flight arrived at Fort Lauderdale-Hollywood International Airport on Jan. 6.
Minutes after he picked up the bag, the shooting began.
The SunSentinel reported that the document is the Broward Sheriff's Office's
final review of its actions following the mass shooting. The page by Delta is a
new detail in the airport shooting. The report didn't disclose whether airline
officials knew what was in the bag.
On that afternoon, passengers from all terminals at the airport fled in a panic
over erroneous reports of an additional airport shooter. The report also shed
light on the extent of the radio problems police and fire personnel encountered
in attempting to communicate as state, local and federal officials answered
calls for backup and converged on the airport.
The report says that at one point, the crush of users sent the system into a
"fail-soft" mode and all connections between responding agencies were lost.
Dispatchers were not able to quickly reconnect groups and told 'all units to
stop transmitting until the radio bridges could be restored."
It took about 4 minutes, the report said. But the system began to "throttle,"
which resulted in garbled transmissions in which Broward Sheriff's Office
deputies and fire officials could only hear parts of words or phrases.
Santiago, of Anchorage, Alaska, was caught by a deputy within minutes of the
shooting. But an hour and a half later, the false reports of additional gunfire
resulted in bedlam at the busy airport. A U.S. Customs and Border Patrol
officer thought he heard shots and relayed the information to a sheriff's
officer fire captain who broadcast it over the radio as: "Border Patrol
reporting shots fired in Terminal 2," the SunSentinel reported.
"The words "shots fired" spread throughout the airport and triggered
pandemonium as thousands of travelers, airline and airport employees began to
escape from the concourses, gates, baggage claim areas, curbside loading areas
and parking garages of all 4 terminals," the report stated.
Sheriff Scott Israel, in an introduction to the report, said the review is an
effort to "objectively review and assess" its response to the deadly shooting.
The report is much shorter and far less critical than a 99-page draft report
released in June that faulted the agency for failing to seize control and set
up an effective command system, the newspaper reported.
Santiago has pleaded not guilty to a 22-count indictment. He has stopped taking
anti-psychotic medication to treat schizophrenia but remains mentally competent
to stand trial, his lawyer told a judge last month.
The Justice Department may seek the death penalty in a trial currently set for
Students interview ex-death row inmate Nick Yarris on Wrongful Conviction Day
Jessica White, an associate of 1st-year experience at the University of
Louisiana at Lafayette, hosted a Skype interview in her UNIV 100 class on
Wrongful Conviction Day, Oct. 2, with a man who spent 21 wrongful years on
Nick Yarris was wrongfully convicted of 1st-degree murder and later released in
2004 after 21 years on death row.
"I can't believe she (White) got in contact with him," said Allie Moodie,
freshman mechanical engineering major.
White teaches 4 classes - 2 sections focused on the crime documentaries and 2
on forensics media and the CSI effect - all of which were invited to her Skype
interview, focused on Yarris' autobiographical documentary "The Fear of 13."
Yarris' wrongful conviction is explained in the documentary available on
Netflix: He spent 21 years on death row in Pennsylvania, but DNA evidence
proved him innocent and he was released with only $5.33 to his name.
"The story I told in 'The Fear of 13' is the story we're all trying to tell.
It's important to highlight the best parts of who we are - the small acts of
good amid the chaos of the world.
"We only support the death penalty if it is for someone else," he added.
Yarris, White explained, was convicted when was 20, pulled over for driving a
stolen car while intoxicated. His life, fraught with criminal behaviors, drug
abuse and sexual abuse, was connected to the murder of a woman when he
attempted to reduce his sentence by providing fabricated information of the
suspect. The false information led to an investigation, and officers found he
matched the suspect's blood type.
Yarris said he reached the point where he asked for his right to be executed.
He said started to question the purpose of his life.
A judge ordered to retest DNA evidence, and Yarris was found innocent.
"I got treated like a nut, stabbed, strangled, had my face crushed," Yaris
said. "I get it, people thought they were enacting a justified vengeance on me.
I had to tune it out. People thought I must be damaged."
Through impassioned testimonies of more than two decades spent behind bars,
Yarris recounted the impact it had on his life at home.
"I had made one promise to my family while I was in there," Yarris said, "and
that was that I wouldn't become an animal, I wouldn't lose to the anger, I
wouldn't give into all the negativity and be like every other prisoner."
Students were able to ask him questions and evaluate the documentary with more
context. Carmen Soileau, a freshman secondary English education major,
described the interview as an "eye opener."
"You don't get the opportunity to talk with people who are wrongfully convicted
because they aren't often given a chance," Soileau said. "I never really did
any research on opinions of the death penalty."
"I really like the example of other people also having a mother or a close
friend," Natalie Roberts, freshman accounting major, said after the interview.
"Why would I support the death penalty and do that to someone else?"
White said she found many of her students changed their opinion on the death
penalty after discussing the documentary in class.
"Our conviction rates in Louisiana are so high, more than any other place in
the world," White said. "So, it's interesting to see that we have Wrongful
Conviction Day, this man who has been wrongfully convicted, and served on death
row -- it's all lining up."
Yarris said education kept him going during his imprisonment. Though as a
20-year-old he had never finished a book, he read over 9,000 books during his
incarceration. He also had 6 years of university classes and spent time
"I made sure I had 1 tool to cling to, my education, because that is the one
thing that gives you separation from what people think or say about you, to
know that you don't listen to them," he said. "The very same people who once
thought I was a psychotic, convicted murderer, thought I was the most
beautiful, eloquent speaker they had ever met in their life. It was their
perspective all along that had been the challenge to my ego."
Despite all of the horrors and tribulations he described, Yarris still had a
hopeful outlook on life.
"Every time you go through a tough experience, that's what's making you a
beautiful human being," he said. "We're broken-inside individuals. I've gone
through things that would break most men, (but) you take that energy and you
create within yourself either a brace or a weakness."
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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