In Florida v. Nixon, Justice Ginsburg wrote for a unanimous Supreme Court that a defense lawyer who conceded his client’s guilt as a strategic tactic was not ineffective because the defendant had remained “unresponsive” to his lawyer’s proposal at the time of his capital trial. Robert McCoy’s lawyer also told a capital jury in Louisiana that his client was guilty, but he did so over McCoy’s strenuous objections. McCoy’s lawyer believed that his client was mentally ill and that conceding his guilt was the best strategy to avoid a death sentence. His gambit failed when McCoy received three death sentences. On direct appeal, the Supreme Court of Louisiana held that the defense lawyer had not been ineffective because to do as McCoy had instructed—i.e., plead his innocence—would have been akin to suborning perjury. But last Monday, Justice Ginsburg, writing again for a six-to-three majority, said that McCoy’s objections and clear instruction distinguished him from the unresponsive defendant in Nixon. McCoy’s case, she wrote, was not about the effectiveness of counsel, but about McCoy’s Sixth Amendment-protected autonomy to make decisions concerning the objectives of his defense. Louisiana must now provide McCoy with a new trial.
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